Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment

Judgment:

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			'appellant' => 'Hafij Ataullah Ansari',
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			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
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			'favorof' => null,
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			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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S.K. Singh and A.P. Sahi, JJ.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
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			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
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			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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	'Judgement' => array(
		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'counselplain' => '',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
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		'pubs' => '2009(2)AWC1250',
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		'sub' => 'Election;Contract',
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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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.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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	'Judgement' => array(
		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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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 lacs. 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.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
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			'respondent' => 'State of U.P. and anr.',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
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		'pubs' => '2009(2)AWC1250',
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		'sub' => 'Election;Contract',
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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	'Judgement' => array(
		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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	'Judgement' => array(
		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
		'citingcases' => '',
		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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	'Judgement' => array(
		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
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		'pubs' => '2009(2)AWC1250',
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
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			'respondent' => 'State of U.P. and anr.',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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	'Judgement' => array(
		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'counselplain' => '',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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6. 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)10SCC1 , which is quoted hereinbelow:

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'counselplain' => '',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
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		'pubs' => '2009(2)AWC1250',
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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26. While exercising the discretion, certain parameters are to be followed:

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'counselplain' => '',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
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		'pubs' => '2009(2)AWC1250',
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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'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 96, para 20).

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'counselplain' => '',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
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		'pubs' => '2009(2)AWC1250',
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		'sub' => 'Election;Contract',
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
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		'pubs' => '2009(2)AWC1250',
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		'sub' => 'Election;Contract',
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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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.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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	'Judgement' => array(
		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
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		'pubs' => '2009(2)AWC1250',
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		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
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		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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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.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
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			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
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		'pubs' => '2009(2)AWC1250',
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		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
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		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
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		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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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.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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31. 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.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
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			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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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.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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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).

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
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			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
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			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'counselplain' => '',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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'Discretion'.--Power of the Court or arbitrators to decide as they think fit.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'counselplain' => '',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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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 311, para 6 : SLT at p. 430, para 6].

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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'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)..

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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'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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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'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 coloruable 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:

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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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 375 para 10 : AIR at p. 1584 para 10.)

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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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).

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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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)..

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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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 and 113)

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
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			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
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			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
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			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
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			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
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			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
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			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
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			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
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			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
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			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
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17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.

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	'title_for_layout' => 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '492939',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Hafij Ataullah Ansari',
			'authreffered' => '',
			'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
			'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
			'caseanalysis' => null,
			'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Allahabad',
			'court_type' => 'HC',
			'decidedon' => '2008-12-19',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
			'judgement' => '<p style="text-align: justify;">S.K. Singh and A.P. Sahi, JJ.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 lacs. 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.</p><p style="text-align: justify;">3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p style="text-align: justify;">4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p style="text-align: justify;">5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p style="text-align: justify;">[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p style="text-align: justify;">6. 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)10SCC1 , which is quoted hereinbelow:</p><p style="text-align: justify;">26. While exercising the discretion, certain parameters are to be followed:</p><p style="text-align: justify;">'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 96, para 20).</p><p style="text-align: justify;">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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">31. 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.</p><p style="text-align: justify;">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.</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p style="text-align: justify;">'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p style="text-align: justify;">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 311, para 6 : SLT at p. 430, para 6].</p><p style="text-align: justify;">'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)..</p><p style="text-align: justify;"> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p style="text-align: justify;">'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 coloruable 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:</p><p style="text-align: justify;">'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.'</p><p style="text-align: justify;">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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p style="text-align: justify;">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 375 para 10 : AIR at p. 1584 para 10.)</p><p style="text-align: justify;">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).</p><p style="text-align: justify;">DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p style="text-align: justify;">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)..</p><p style="text-align: justify;"> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p style="text-align: justify;">'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p style="text-align: justify;">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 and 113)</p><p style="text-align: justify;">7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p style="text-align: justify;">8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p style="text-align: justify;">9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p style="text-align: justify;">10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p style="text-align: justify;">11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p style="text-align: justify;">12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p style="text-align: justify;">It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p style="text-align: justify;">We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p style="text-align: justify;">13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p style="text-align: justify;">14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p style="text-align: justify;">15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p style="text-align: justify;">(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p style="text-align: justify;">(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p style="text-align: justify;">(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p style="text-align: justify;">16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p style="text-align: justify;">17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2009(2)AWC1250',
			'ratiodecidendi' => '',
			'respondent' => 'State of U.P. and anr.',
			'sub' => 'Election;Contract',
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$title_for_layout = 'Hafij Ataullah Ansari Vs State of U P and anr - Citation 492939 - Court Judgment | '
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		'id' => '492939',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Hafij Ataullah Ansari',
		'authreffered' => '',
		'casename' => 'Hafij Ataullah Ansari Vs. State of U.P. and anr.',
		'casenote' => ' - LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land  Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land  acquisition is not purely ministerial act to be performed by executive  No direction in nature of mandamus whether interim or final can be issued by Court under Article 226 necessarily to acquire particular land in public  interest.  Land acquisition is not a purely ministerial act to be performed by the executive and therefore,  no mandamus can be issued by the Court in exercise of its power under Article 226 of the Constitution, whether suo motu or otherwise, whether in Public Interest Litigation or otherwise directing acquisition of land under the provisions of Land Acquisition Act, 1894. It would, however, be open to the Court in exercise of that power to  invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with  regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time  frame. However, the power of the Court under Article 226 must necessarily stop at that. Thereafter, if the decision taken by  the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the Court to quash the decision and to  require reconsideration. But no direction in the nature of Mandamus    whether interim or final can be issued by the Court under Article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose.
Section 4; Compulsory Acquisition of Land  Powers of State Government  Held, Renewal of lease in favour of petitioners would not take away power of State Government of compulsory acquisition of land. Renewal of lease would at best be taken into consideration for determining quantum of compensation.  
 -  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. 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. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity. ' We can-do no better than repeat the famous words of Judge learned Hand when he said: it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing:',
		'caseanalysis' => null,
		'casesref' => 'Smt. Kamli Devi v. State of U.P. and Ors.;',
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		'counselplain' => '',
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		'court' => 'Allahabad',
		'court_type' => 'HC',
		'decidedon' => '2008-12-19',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Singh and; A.P. Sahi, JJ.',
		'judgement' => '<p>S.K. Singh and A.P. Sahi, JJ.</p><p>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.</p><p>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 lacs. 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.</p><p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.</p><p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.</p><p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:</p><p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]</p><p>6. 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)10SCC1 , which is quoted hereinbelow:</p><p>26. While exercising the discretion, certain parameters are to be followed:</p><p>'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 96, para 20).</p><p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..</p><p>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.</p><p>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.</p><p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.</p><p>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.</p><p>31. 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.</p><p>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.</p><p>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).</p><p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:</p><p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.</p><p>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 311, para 6 : SLT at p. 430, para 6].</p><p>'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)..</p><p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.</p><p>'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 coloruable 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:</p><p>'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.'</p><p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...</p><p>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 375 para 10 : AIR at p. 1584 para 10.)</p><p>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).</p><p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).</p><p>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)..</p><p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;</p><p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;</p><p>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 and 113)</p><p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.</p><p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.</p><p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.</p><p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.</p><p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.</p><p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:</p><p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.</p><p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.</p><p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).</p><p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.</p><p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:</p><p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?</p><p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?</p><p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?</p><p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.</p><p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2009(2)AWC1250',
		'ratiodecidendi' => '',
		'respondent' => 'State of U.P. and anr.',
		'sub' => 'Election;Contract',
		'link' => null,
		'circuit' => null
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	(int) 0 => '<p>S.K. Singh and A.P. Sahi, JJ.',
	(int) 1 => '<p>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.',
	(int) 2 => '<p>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 lacs. 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.',
	(int) 3 => '<p>3. 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 Ors. : 2008(1)AWC271 and in the case of Rekha (Kinner) v. State of U.P. and Ors. : 2008(2)AWC1139 , 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 Ors. 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. Chtnta Yadav v. State of U.P. and Ors. 2008 (3) ESC 1673 (All) (DB) (LB), also makes it imperative for an authoritative pronouncement on the issues raised in the present writ petition.',
	(int) 4 => '<p>4. 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 thereunder and secondly in order to ascertain as to whether the charges are groundless or any prima 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 arrangement. This further raises a question as to whether the words 'reason to believe' occurring in the proviso referred to hereinabove 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 ipse jure in nature.',
	(int) 5 => '<p>5. The proviso to Section 48(2) is quoted hereinbelow for ready reference:',
	(int) 6 => '<p>[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 subsection resulting in the issuance of the show-cause notice and proceedings under this subsection 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 finalisation of the proceedings under Sub-section (2A) 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.]',
	(int) 7 => '<p>6. 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)10SCC1 , which is quoted hereinbelow:',
	(int) 8 => '<p>26. While exercising the discretion, certain parameters are to be followed:',
	(int) 9 => '<p>'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 96, para 20).',
	(int) 10 => '<p>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 Sharpe v. Wakefield, considered the word 'discretion' with reference to its exercise and held : (All ER p. 653 F-G)..',
	(int) 11 => '<p>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.',
	(int) 12 => '<p>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.',
	(int) 13 => '<p>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 of understanding to discern between falsity and truth, between wrong and right, between shadow and substance-, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.',
	(int) 14 => '<p>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.',
	(int) 15 => '<p>31. 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.',
	(int) 16 => '<p>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.',
	(int) 17 => '<p>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).',
	(int) 18 => '<p>35. In Advanced Law Lexicon by P. Ramanatha Aiyar, it has been stated as follows:',
	(int) 19 => '<p>'Discretion'.--Power of the Court or arbitrators to decide as they think fit.',
	(int) 20 => '<p>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 311, para 6 : SLT at p. 430, para 6].',
	(int) 21 => '<p>'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)..',
	(int) 22 => '<p> '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, L.C. in Susannah Sharp v. Wakefield, at p. 179, referred to in Siben Kumar Mondal v. Hindustan Petroleum Corporation Ltd. AIR pp. 333-35). (See also Aero Traders Put. Ltd. v. Ravindra Kumar Suri SCC (3) p. 311, para 6 : SLT at p. 430, Para 6; Man Mal Sharma v. Bikaner Sahkari Upbhokta Bhandar AIR at p. IS and Rekha Bhasin v. Union of India AIR at p. 322.',
	(int) 23 => '<p>'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 coloruable 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:',
	(int) 24 => '<p>'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.'',
	(int) 25 => '<p>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, methodised by analogy, disciplined by system, and subordinated to 'the primodial 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...',
	(int) 26 => '<p>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 375 para 10 : AIR at p. 1584 para 10.)',
	(int) 27 => '<p>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).',
	(int) 28 => '<p>DISCRETION is governed by rule and it must not be arbitrary, vague and fanciful. (See Jaisinghani v. Union of India AIR at p. 1434).',
	(int) 29 => '<p>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)..',
	(int) 30 => '<p> There (may) be several degrees of Discretion, discretio generalis, discretion legalis, discretio specialis, Discretio generalis is required of every one in everything that he is to do, or attempt;',
	(int) 31 => '<p>'Legalis discretio', is that which Sir E Coke meaneth and settetth forth in Rookes and Keighleys cases and this is merely to administer justice according to the prescribed rules of the law;',
	(int) 32 => '<p>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 and 113)',
	(int) 33 => '<p>7. The aforesaid principles, in our opinion, have to be kept in mind while interpreting the provision and the power of the State Government to exercise its discretion in depriving the elected President of the financial and administrative powers.',
	(int) 34 => '<p>8. The issue, therefore, requires an examination to the effect as to whether once a notice has been issued then whether the action under the proviso is automatic. To our mind, even if the proviso requires taking of an action, it cannot be presumed to be automatic inasmuch as the proviso uses the phrases that the State Government should have 'reason to believe' that the allegations do not appear to be 'groundless' and has to further come to the conclusion that the Chairman/President is prima facie guilty of the charges. The word 'shall' makes it obligatory for the State Government to invoke the power only after it is satisfied that the ingredients are available for temporarily dislodging the elected President and making him virtually non-functional. This, in our opinion, may not be a reasonable exercise on the basis of mere minimal allegations as suggested in Imran Masod's case but may require even a summary procedure to be followed associating the concerned person by at least allowing him to afford an explanation for the purpose of his continuing to discharge the administrative and financial powers. This would also eliminate any element of possibility of abuse of power and criticism of the order as political victimisation.',
	(int) 35 => '<p>9. It may be noted that the same material may exist for the issuance of the notice, but the satisfaction for exercise of powers under the proviso may require sufficient material so as to fulfil the ingredients of the proviso. We have perused the decision in the case of Rekha (Kinner) (supra), where reliance has been placed by the Division Bench on an Apex Court decision in S. Sundaram Pillai, etc. v. V.R. Pattabiraman : [1985]2SCR643 . The Division Bench has quoted the said paragraph in order to ascertain the purpose of a proviso. Considering the impact of the said ratio of the Supreme Court, if it is presumed that the proviso can act by itself, then in that event a separate consideration for invoking the proviso, in our opinion has to be made and a satisfaction has to be recorded by the State Government to that effect. It is only then can such an order be said to be justified to fulfil the requirements of the ingredients of groundlessness or otherwise and further reason to believe. The existence of the same material for issuance of the show cause notice cannot ipse jure make it imperative for the State Government to automatically pass an order under the proviso, as in our opinion that would amount to refusal to exercise discretion to arrive at a conclusion in order to satisfy the ingredients of reason to believe, prima face, case and groundlessness of the material or otherwise. The aforesaid aspects, in our humble opinion and with due respect, have not been considered in the case of Rekha (Kinner) (supra) and may, therefore, require a further consideration.',
	(int) 36 => '<p>10. The other aspect of the matter of providing an opportunity to the President/Chairman and holding a preliminary inquiry also requires a consideration. The Division Bench in the case of Rekha (Kinner) has arrived at the conclusion that a perusal of the proviso under' question does not require any observance of preliminary inquiry or of giving any opportunity to the President. In our opinion, in order to infer reason to believe or whether the charges are groundless or not and there is prima facie guilt, the affected persons may have something to say and point out if the charges are absolutely frivolous. This is because one has to keep in mind that office of President is an elected office and the exercise of powers under the proviso virtually amounts to a complete ouster under the garb of an interim arrangement. The observations of the Apex Court in this regard in Paras 7 to 11 of the decision in the case of Tarlochan Dev Sharma v. State of Punjab and Ors. : [2001]3SCR1146 , may be useful in the present context.',
	(int) 37 => '<p>11. The existence of municipalities is no longer a mere statutory creation but is under the 74th Constitutional Amendment granting Constitutional Status and protection reference may be had to Part IXA to the Constitution of India. The office of the President, Nagar Panchayat, therefore, is insulated from executive arbitrariness and the protection of Article 14 of the Constitution of India stands extended.',
	(int) 38 => '<p>12. The proviso nowhere prohibits the collection of any information or the association of the President at the stage of exercise of powers under the proviso while issuing the show cause notice. The aforesaid issue was raised in the case of Smt. Vimla (supra), but the Division Bench, as indicated in Paras 18 to 20 of the said decision, did not enter into the question and left the said issue open. The question as to whether an opportunity is required to be given or not would depend upon the interpretation of the proviso so as to necessarily exclude the application of principle of natural justice altogether or otherwise be construed to preserve such a right in favour of the President as the consequence arising out of such an order necessarily entails civil consequences. One can easily refer to the manner in which an interpretation has to be attempted as stated by the Supreme Court in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and Anr. : [1981]131ITR597(SC) , which is quoted hereinbelow:',
	(int) 39 => '<p>It ignores several vital considerations which must always be borne in mind when we are interpreting a statutory provision. The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the Legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be 'drafted with divine prescience and perfect clarity.' We can-do no better than repeat the famous words of Judge learned Hand when he said:.it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.',
	(int) 40 => '<p>We must not adopt a strictly literal interpretation of Section 52 Sub-section (2) but we must construe its language having regard to the object and purpose which the Legislature had in view in enacting that provision and in the context of the setting in which it occurs. We cannot ignore the context and the collocation of the provisions in which Section 52 Sub-section (2) appears, because, as pointed out by Judge learned Hand in most felicitous language:.the meaning of a sentence may be more than that of the separate words as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.',
	(int) 41 => '<p>13. To what extent the rules of natural justice would come into play need not be further delineated by us, inasmuch as the Division Bench in Smt. Vimla's case (supra), has given sufficient indications in paras 44 to 51 thereof and we find ourselves in full agreement with the same. Even though the said decision was rendered later to the decision of Rekha (Kinner) yet it seems that the question was not answered as it might have required a reference, as is evident from para 16 of the aforesaid decision. We also, in view of the reasons aforesaid, are of the opinion that the order entails civil consequences and therefore, the discretion by the State Government to invoke the proviso has to conform to the minimal rules of natural justice even if it may be summary in nature. The affected person can always demonstrate that the charges are absolutely frivolous and, therefore, the said proviso should not be invoked. We find support to this extent from Paras 40, 41 and 48 of the decision in Smt. Vimla's case (supra).',
	(int) 42 => '<p>14. The other decision in this regard is Imran Masood's case (supra). It has been held in Para 8 of the said decision that the question of reason to believe can be ascertained by fulfilling the requirement of lowest level of sufficiency. For this, the Division Bench appears to have concluded in Para 5 of the said decision that a minimal allegation can also form the ground for issuance of show cause notice. This decision was also rendered prior to the decision in Smt. Vtmla's case but the said decision does not find reference in the decision of Smt. Vimla. It appears that either the said decision was not brought to the notice of the Court or the Bar was unaware of the view expressed by the Division Bench in Imran Masood's case. Nonetheless whatever be the reason, in view of the exhaustive and detailed consideration which were left unanswered in the case of Smt. Vimla, in our opinion has again arisen in the present matter and, therefore, the same requires to be resolved by a larger Bench for an authoritative pronouncement on the issues so raised. It is to be remembered that there is a clear difference between a mere allegation and the existence of sufficient basis and material in support of the allegation. We are of the opinion that unless and until there is some material on the basis whereof satisfaction can be arrived at, it is then only that the power can be exercised. In that event also whether the material is frivolous or not may require at least a summary inquiry before proceeding to invoke the powers.',
	(int) 43 => '<p>15. We, accordingly, refer the following questions which may be considered by Hon'ble the Chief Justice for being answered by a larger Bench:',
	(int) 44 => '<p>(1) Whether the State Government in proceedings initiated for removal under Section 48(2) of the U.P. Municipalities Act, 1916 is required to give any opportunity at the stage of invoking the powers in the first proviso before restraining the President from exercising his financial and administrative powers and as to whether any such preliminary inquiry is permissible to be read into the aforesaid proviso ?',
	(int) 45 => '<p>(2) Whether the State Government has to record a subjective satisfaction separately for invoking the said powers even if the material for the issuance of the show cause notice and the invoking of such powers is the same?',
	(int) 46 => '<p>(3) Whether the views expressed by this Court in the decisions of Imran Masood v. State of U.P. and Ors. 2007 (10) ADJ 350 (DB). and in the case of Rekha (Kinner) v. State of U.P. and Ors. 2008 (3) ADJ 315 (DB), require reconsideration in the light of the observations as contained in Smt. Vimla v. State of U.P. and Ors. 2008 (10) ADJ 128 (DB (LB), for an authoritative pronouncement on issue Nos. 1 and 2?',
	(int) 47 => '<p>16. It has been brought to our notice that a similar nature of controversy under the Uttar Pradesh Panchayat Raj Act, 1947 in respect of the financial and administrative powers of a village Pradhan have been considered by Hon'ble Mr. Justice Tarun Agrawal, who has referred the matter under Chapter V, Rule 6 in Writ Petition No. 45376 of 2008. Smt. Kamli Devi v. State of U.P. and Ors. : 2008(4)AWC3749 vide order dated 22.9.2008 and Hon'ble the Chief Justice has been pleased to nominate the same to a Bench of Hon'ble Mr. Justice Janardan Sahai, Hon'ble Mr. Justice Rakesh Sharma and Hon'ble Mr. Justice Krishna Murari vide order dated 12.11.2008.',
	(int) 48 => '<p>17. Let the papers be placed before Hon'ble the Chief Justice for appropriate orders.<p>',
	(int) 49 => '<p>'
)
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$cnt = (int) 50
$i = (int) 49
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Subject	Election;Contract
Court	Allahabad High Court
Decided On	Dec-19-2008
Judge	S.K. Singh and; A.P. Sahi, JJ.
Reported in	2009(2)AWC1250
Appellant	Hafij Ataullah Ansari
Respondent	State of U.P. and anr.
Cases Referred	Smt. Kamli Devi v. State of U.P. and Ors.

Hafij Ataullah Ansari Vs. State of U.P. and anr. - Court Judgment