HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 08 of 2009 (M/B) (Old No. 338 (M/S) 2009) Mohd. Akram. ……..Petitioner Versus S tate of Uttarakhand and others. …….Respondents Mr. Arvind Vashishtha, Advocate for the petitioner, Mr. B.K. Gupta, Addl. Advocate General for the State/respondent nos. 1 to 5. Mr. B.D. Pandey, Advocate for respondent no.6. Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. Vikas Pandey, Advocate for respondent no.7. Dated: February 18, 2011 Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. Barin Ghosh,C.J. (Oral) Learned counsel for the petitioner has expressly waived challenge thrown by his client to the validity of Section 48(2)(b)(i) and Section 48 (2)(b) (xvii) of the Uttar Pradesh Municipalities Act, 1916. Learned counsel for the petitioner has confined his challenge to the impugned order dated 2nd March, 2009 passed by the respondent no.2. 2. Facts of the case, to which there appears to be no dispute, are that the petitioner filed nomination on 29th March, 2008 for being elected as President of the Ram Nagar, Municipality. He was elected as President of the said Municipality on 21st April, 2008. Respondent no.7 filed a complain on 7th May, 2008 stating that the petitioner was not qualified for being chosen as President of the said Municipality. The reason indicated was that he is in occupation of a Nazul land unauthorizely. It was indicated that before petitioner had filed his nomination, a demand notice was issued to him. The above complain was inquired, in course whereof, a notice was given to the petitioner to explain his stand pertaining to the complain. 2 Petitioner, in his reply, stated that his younger brother moved the Civil Judge (Jr. Div.), Ram Nagar against him and against the Municipality in respect of the said demand notice and obtained a decree on 3rd September, 2008, whereby and under Civil Judge (Jr. Div.), Ram Nagar restrained the petitioner and the Municipality by way of a permanent injunction not to interfere with the land in question. Accepting the fact of passing of such decree and holding out that the said decree is binding on the parties, in the impugned order dated 2nd March, 2009, respondent no.2 held that since under the Muslim (Sunni) Law, the brother of the petitioner is an heir of the petitioner, and since the brother of the petitioner is in unauthorized occupation of a Nazul land, petitioner is disqualified for being chosen as President of the said Municipality and, accordingly, nullified his election as President of the said Municipality. 3. Section 43-AA of Uttar Pradesh Municipalities Act, 1916, as amended by the State of Uttarakhand, provides that a person shall be disqualified for being chosen as or for being a President of a Municipality, if he is or has become subject to any of the disqualifications mentioned, amongst others, in Clause-N of Section 13-D of the said Act and such disqualification has not ceased or been removed. Clause-N of Section 13-D of the said Act is as follows: “The person or any member of his/her family or his/ her legal heir is in unauthorized occupation of any land or building owned or managed by the Municipality/ Government or a public road or pavement, canal, drain, or is a beneficiary of such unauthorized occupation.” 3 4. The emphasis in Clause-N of Section 13-D of the Act is on “unauthorized occupation”. In the impugned order, the respondent no.2 has acknowledged passing of a decree by a Civil Court. It has also been acknowledged that by the decree, not only the petitioner, but also the Municipality, has been restrained from stepping into the land in question by way of a permanent injunction. By virtue of the said decree, it has been held that the Decree Holder is entitled to possess the land in question and the Municipality is not entitled to interfere with such possession. In such view of the matter, we fail to understand how the respondent no.2, while passing the impugned order, could come to the conclusion that the brother of the petitioner is in unauthorized occupation of the land in question? 5. We hold that the order impugned do not disclose any material, on the basis whereby a prudent person can come to the conclusion, that the petitioner or his brother was in unauthorized occupation of any land belonging to the Municipality or the Government. In such view of the matter, we allow the writ petition and quash the order impugned. 6. The impugned order, for the reasons indicated above, is so palpably absurd, we were minded to impose exemplary cost upon the State, with liberty to the State to recover the same from the person, who created the order in question, but only at the request of the learned counsel for the State, we have restrained ourselves from imposing such cost with a reminder that unless it takes steps to train its officers appropriately, it would expose the public 4 exchequer for payment of costs in litigations filed against it or by it. 7. Let a copy of the order be sent to the Chief Secretary, State of Uttarakhand, Dehradun for taking appropriate action. (V.K. Bist, J.) (Barin Ghosh, C.J.) 18.02.2011 NCM: