Legal Document View

Unlock Advanced Research with PRISMAI

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 20, Cited by 2]

Rajasthan High Court - Jaipur

Meena Jatav vs State Of Raj And Ors on 25 February, 2019

Author: Veerendr Singh Siradhana

Bench: Veerendr Singh Siradhana

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

                           S.B. Civil Writs No. 11598/2018

Meena Jatav W/o Shri Dinesh Jatav, Resident Of Lal Darwaja,
Bayana District Bharatpur.
                                                                                    ----Petitioner
                                               Versus
1.         State Of Rajasthan Through Principal Secretary, Local Self
           Government, Secretariat, Rajasthan, Jaipur.
2.         Joint Secretary, Local Self Government Department,
           Government Of Rajasthan, Jaipur.
3.         Director, Local Bodies, Rajasthan, Jaipur.

4.         District Collector, Bharatpur.
5.         Sub-Divisional Magistrate, Bayana.
6.         Om Prakash S/o Heera Chand, aged about 31 years, by
           Caste Koli, Resident of Koli Pada, Near Pakki Athai,
           Bhitarwadi, Bayana, District Bharatpur (Presently Elected
           Chairman, Municipal Board, Bayana, District Bharatpur).
                                                                               ----Respondents


For Petitioner(s)                   :     Mr. R. B. Mathur
For Respondent(s)                   :     Mr. Anil Mehta, AAG, Mr. S. K. Gupta
                                          Mr. Rajneesh Gupta,
                                          Mr. S. P. Dhanera for Mr. Deen Dayal
                                          Sharma, Mr. Lokesh Kumar for
                                          Mr. Manu Bhargava



      HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA

                                               Order

25/02/2019

                Aggrieved of the order dated 14 th March, 2018, wherein

'No    Confidence           Motion'        was       carried       against        the      petitioner

dislodging her from the post of Chairperson of Municipal Board,

Bayana; the petitioner has instituted the present writ application

praying for the following relief(s):


 (D.B. SAW/435/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
                           (Downloaded on 06/06/2021 at 02:48:12 AM)
                                                     (2 of 15)                       [CW-11598/2018]


        "(i) Hold the No Confidence Motion moved against the
        petitioner as illegal and contrary to provision of the Act
        and Constitution of India.

        (ii) Quash the notice dated 14 th March, 2018 (Annexure-5)
        issued by SDM restraining the petitioner from holding
        post of Chairperson and vacating the said post.

        (iii) Hold any action taken in pursuance to the rules as
        illegal and without authority of law. Any action taken after
        the removal of the petitioner as Chairperson, Bayana may
        be quashed and set aside.

        (iv) Hold any election taken place after removal of
        petitioner as illegal as the entire proceedings of no
        confidence motion was bad in law and stands vitiated in the
        light of judgment of the Hon'ble Court.

        (v) Any other appropriate order which is in the interest of
        justice may also be passed.

        (vi) Such further relief for which the petitioner is
        entitled may also be awarded in the fact and
        circumstances of the case including cost of the petition."

2.              Mr. R. B. Mathur, learned counsel for the petitioner

referring to opinion of a Division Bench of this Court in the case of Rajkumar Jaiswal Vs. State of Rajasthan & Ors.: D. B. Civil Writs No. 23845/2017, decided on 17 th May, 2018, contended that "eligible member" as defined under Rule 2(1)(b) of Rajasthan Municipalities (Motion of No Confidence Against Chairperson or Vice-chairperson) Rules, 2017 (for short, 'Rules of 2017'), would also include the ex-officio members (MP and/or MLA).

3. According to learned counsel, exclusion of ex-officio members (MP and/or MLA), would be contrary to mandate of Section 2(xxxvi), 2(Lxxii) and Section 6 of the Rajasthan Municipality Act, 2009 (for short, 'Act of 2009'), which provides for composition of municipalities in the backdrop of Article 243R of the Constitution of India.

(D.B. SAW/435/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 02:48:12 AM) (3 of 15) [CW-11598/2018]

4. Learned counsel would further contend that proviso to Article 243R of the Constitution of India, excludes voting right of 'nominated member' only and not of the Member of Parliament and/or Member of Legislative Assembly as a case may be.

5. Referring to the adjudication of the Division Bench in the case of Rajkumar Jaiswal (supra), approved by the Apex Court of the land, declining SLP instituted against the adjudication vide order dated 31st October, 2018; it is further pointed out that even the argument made to the effect that voting right in the meeting of 'No Confidence Motion' would be available to only those, who participate in the election was repelled for such an interpretation would be contrary to the text of Article 243R of the Constitution of India as well as Section 6 of the Act of 2009. 6.

Further, Section 6(1) of the Act of 2009, in no uncertain terms excludes only 'nominated members' and not Member of Parliament and/or Member of Legislative Assembly, as the case may be.

7. Reference has also been made to counter affidavit filed on behalf of the respondent number 5, stating thus:

"In view of the discussion made above, Rule 2(1)(b) of the Rules of 2017 is struck down if it excludes ex-officio member.
In the light of the aforesaid, we hold that ex-officio members i.e. Members of the House of people and the Assembly have right to vote in a meeting for no confidence motion.
In view of the above, no confidence motion vitiate due to exclusion of ex-officio members and is, accordingly, set aside. It is moreso if they would have been included for vote, the result could have been different as the no confidence motion was not carried by margin so as to ignore the vote of ex-officio members."

(D.B. SAW/435/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 02:48:12 AM) (4 of 15) [CW-11598/2018]

8. Mr. R. B. Mathur, learned counsel, therefore, would contend that the very initiation of 'No Confidence Motion' against the petitioner under the Rules of 2017, is bad in the eye of law and the entire process stands vitiated for no notice was issued to the Member of Legislative Assembly, in the case at hand.

9. Further, for the interpretation as to "eligible member", as declared by the Division Bench, in the case of Rajkumar Jaiswal (supra) confirmed by the Apex Court of the land declining SLP instituted by one Shri Murli Manohar, who was elected Chairman after removal of Rajkumar Jaiswal, in view of 'No Confidence Motion' carried against him; the controversy is no more res-integra and the writ application merits acceptance.

10. Responding to objection as to non-application of the opinion in the case of Rajkumar Jaiswal (supra) for no challenge was made to 'No Confidence Motion' dated 14 th March, 2018, prior to 17th May, 2018, the date of adjudication in the case of Rajkumar Jaiswal (supra); learned counsel for the petitioner asserted that the plea is misconceived in view of the plain and simple meaning of the text of the opinion.

11. Per contra; Mr. Anil Mehta, learned Additional Advocate General for the State-respondents, contended that subsequent to 'No Confidence Motion' that was carried vide impugned notice dated 14th March, 2018; fresh election to the post of Chairperson was conducted wherein the petitioner also submitted her candidature, but, later on she withdrew. The election was held on 20th April, 2018, and respondent No. 6-Om Prakash, was elected as Chairperson of Municipal Board, Bayana.

12. Learned Additional Advocate General, further contend that the present writ application was instituted on 25 th May, 2018, (D.B. SAW/435/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 02:48:12 AM) (5 of 15) [CW-11598/2018] which suffers with the vice of delay and laches, and therefore, merits rejection on that count as well.

13. It is further pointed out that out of 22 eligible members, who participated in the 'No Confidence Motion' proceedings culminating into impugned notice dated 14 th March, 2018; 21 members voted against the petitioner. Thus, it was not a case of margin.

14. Mr. S. K. Gupta, learned counsel appearing for respondent No. 6, who was elected Chairperson on 20 th April, 2018, would contend that entire tone and tenor of the pleadings of the writ application would reflect that it has been instituted, relying upon the adjudication in the case of Rajkumar Jaiswal (supra).

15. According to learned counsel, the Division Bench of this Court while deciding the case of Rajkumar Jaiswal (supra), specifically pointed out that 'No Confidence Motion' was not carried by margin so as to ignore the vote of ex-officio members. Hence, in the factual matrix of the case at hand wherein 21 members out of 22, who participated in the 'No Confidence Motion' proceedings; voted against the petitioner herein, the petitioner is not entitled to any relief on that count as well.

16. According to Mr. S. K. Gupta, the Division Bench further made it clear that the judgment in the case of Rajkumar Jaiswal (supra), would be applicable only in cases where challenge was laid to the 'No Confidence Motion' before 17 th May, 2018 i.e. the date of adjudication in the case of Rajkumar Jaiswal (supra). If one did not challenge the 'No Confidence Motion' that was carried; he/she would not be covered by the adjudication. Hence, the petitioner's writ application merits rejection with heavy costs. In (D.B. SAW/435/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 02:48:12 AM) (6 of 15) [CW-11598/2018] support of his stand, learned counsel has relied upon the opinion in the case of State of Orissa and Another Vs. Mamata Mohanty: (2011)3 SCC 436, wherein the Apex Court of the land held that delay and laches would be a good sufficient ground to decline relief in case the petitioner approached the Court relying upon adjudication in the similar case.

17. It is further asserted that the petitioner is also guilty of suppression of material facts for she participated in the subsequent election for the post of Chairperson of Municipal Board, Bayana, on 20th April, 2018 and has approached this Court only on 25th May, 2018. Reference has also been made to opinion in the case of M.Muniyappa and Anr. Vs. Karnataka and Ors.:

ILR 1998 KAR 3989 and Smt. Kamla Durga Solanki Vs. State of Madhya Pradesh: 2004 (2) MPHT 76, Smt. Pushpanjali Raju Vs. State of Orissa: 2002 I OLR 227 and Munirathnamma Vs. The Asst. Commissioner, Kolar, decided on 18th January, 2007.

18. I have heard the learned counsel for the parties and with their assistance scanned the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.

19. Indisputably, the Division Bench of this Court interpreted the definition clause with reference to 'eligible member' under the Rules of 2017, holding that Rule 2(1)(b) is struck down, if it excludes ex-officio member from its ambit.

20. At this juncture, it will be profitable to take note of relevant provisions of the Constitution of India, i.e. Article 243R and Article 243ZG, which reads thus:

"Article 243R (D.B. SAW/435/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 02:48:12 AM) (7 of 15) [CW-11598/2018] Composition of Municipalities:- (1) Save as provided in clause (2) all the seats in a Municipality shall be filled by person chosen by directed election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be knon\wn as wards.
(2) The Legislature of a State may, by law, provide-
(a) for the representation in a Municipality of-
(i) persons having special knowledge or experience in Municipal administration;
(II) the members of the House of the people and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area;
(iii) the members of the council of states and the members of the Legislative Council of the State registered as electors within the Municipal area;
(iv) the Chairpersons of the Committees constituted under clause (5) of article 243S:
Provided that the persons referred to in paragraph (a) shall not have the right to vote in the meetings of municipality;
(b) the manner of election of the Chairperson of Municipality.

Article 243ZG:

Bar to interference by courts in electoral matters- Notwithstanding anything in this Constitution:-
(a) the validity of nay law relating to the delimilation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243ZA shall not be called in question in any court;
(b) No election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."

21. The provisions of Act of 2009, so far relevant to the controversy raised herein, i.e. Section 6, 30 and 31, reads thus:

"Section 6.
(D.B. SAW/435/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 02:48:12 AM) (8 of 15) [CW-11598/2018] Composition of Municipality.- (1) Subject to the provisions contained in the succeeding sub-sections, but save as provided in the following provisions of this sub-section, all seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies known as wards, the number of such seats, not being less than thirteen, being fixed by the State Government from time to time by notification in the Official Gazette: -
(a) the following shall represent in the Municipal Board, Municipal Council or, as the case may be, Municipal Corporation, viz.:-
(i) the member of the Rajasthan Legislative Assembly representing a constituency which comprises wholly or partly the area of a Municipality; and
(ii) three persons or ten percent of the number of elected members of the Municipality, whichever is less, having special knowledge or experience in municipal administration, to be nominated by the State Government by notification in the Official Gazette: Provided that-
(i) the provisions contained in section 24 and section 35 shall be applicable to the persons to be nominated or nominated members;

(ii) the State Government shall have power to withdraw a nominated member at any time;

(iii) a nominated member shall not have the right to vote in the meetings of a Municipality;

(b) the member of the House of the People representing a constituency which comprises wholly or partly the area of a Municipal Council or, as the case may be, a Municipal Corporation shall represent on such Council or such corporation:

Provided that the member referred to in sub-clause (i) of clause (a) shall have a right to vote in the meetings of a Municipal Board, a Municipal Council or, as the case may be, a Municipal Corporation, and the member referred to in clause (b) shall have a right to vote in the meetings of a Municipal Council or Municipal Corporation: Provided further that the members referred to in sub-clause (i) of clause (a), and clause (b) shall not be subject to any disqualification or any other proceedings under the provisions of this Act.
(D.B. SAW/435/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 02:48:12 AM) (9 of 15) [CW-11598/2018] (2) Upon the completion of each census after the establishment of the Municipality, the number of seats shall be re-determined by the State Government by notification in the Official Gazette on the basis of the population of the municipal area as ascertained at the latest census: Provided that the determination of seats as aforesaid shall not affect the existing composition of the Municipality until the expiry of its term.
(3) In so fixing the total number of seats for a Municipality, the State Government shall specify the number respectively of general seats and of seats reserved for women and for members of the Scheduled Castes or for members of the Scheduled Tribes or for both or persons belonging to the Backward Classes as it may in each case determine.
(4) The number of seats reserved for members of Scheduled Castes or Scheduled Tribes shall, in relation to the total number of seats fixed for a Municipality, bear as nearly as may be, the same proportion as the population of the Scheduled Castes or Scheduled Tribes in the municipal area bears to the total population thereof.
5) The percentage of seats reserved for the Backward Classes shall be such as the percentage of the combined population of Scheduled Castes and Scheduled Tribes in relation to the total population in the municipal area falls short of fifty: Provided that the percentage of seats so reserved for the Backward Classes shall not exceed twenty-one: Provided further that at least one seat shall be reserved for the Backward Classes in every Municipality where the percentage of the combined population of Scheduled Castes and Scheduled Tribes in relation to the total population in the municipal area does not exceed seventy.
(6) One half of the seats reserved for the Scheduled Castes or the Scheduled Tribes or the Backward Classes shall be reserved for the women belonging to such Castes, Tribes or, as the case may be, Classes.
(7) One half including the number of seats reserved under sub-section (6) of the total number of seats shall be reserved for women.
(8) The reservation of seats for Scheduled Castes and Scheduled Tribes and the Backward Classes under sub-

sections (3), (5) and (6) shall cease to have effect on the (D.B. SAW/435/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 02:48:12 AM) (10 of 15) [CW-11598/2018] expiration of the period specified in Article 334 of the Constitution of India.

(9) All the seats fixed for a Municipality, general as well as reserved, shall be filled up by direct election from the wards in the municipal area and such election shall be held in the prescribed manner.

Section 30.

Jurisdiction of civil courts in electoral matters.- (1) No civil court shall have jurisdiction to entertain or adjudicate upon any question relating to the delimitation of wards, the allotment of seats to such wards, preparation of electoral rolls or conduct of election. (2) No election to any Municipality shall be called in question except by an election petition presented in accordance with the provisions of this Act.

Section 31.

Election petition.- (1) The election of any person as a member of a Municipality may be questioned by an election petition filed within one month from the date of election before the District Judge having territorial jurisdiction over the municipal area on one or more of the following grounds, namely:-

(a) that on the date of election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under this Act, or
(b) that any corrupt practice specified in section 29 has been committed by a returned candidate or his election agent or by any other person, with the consent of a returned candidate or his election agent, or
(c) that any nomination has been improperly rejected, or
(d) that the result of the election, in so far as it concerns a returned candidate has been materially affected-
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interest of the returned candidate by a person other than that candidate or his election agent or a person acting with the consent of such candidate or election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of this Act or of any rules or orders made thereunder, or
(e) that in fact the petitioner or some other candidate received a majority of the valid votes, or (D.B. SAW/435/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 02:48:12 AM) (11 of 15) [CW-11598/2018]
(f) that, but for the votes obtained by the returned candidate by corrupt practices, the petitioner or some other candidate would have obtained a majority of the valid votes.
(2) In hearing the election petition, the District Judge shall follow such procedure and exercise such powers as may be prescribed."

22. The Division Bench of this Court while considering the illegality, validity and correctness of definition Clause of Rule 2(1)

(b) as to "eligible member", under the Rules of 2017, held thus:

"In view of the aforesaid, we are of the view that if definition of "eligible member" given under Rule 2(1)(b) of the Rules of 2017 excludes ex-officio members (MP and MLA) then it is hit by Sections 2(xxxvi), 2(Lxxiii) and Section 6 of the Act of 2009 and otherwise Article 243R of the Constitution of India providing composition of Municipalities. The proviso under Article 243R of the Constitution of India excludes voting right of nominated member only and not of members of the House of people or Assembly, Section 6 of the Act of 2009 gives voting right to them. The definition of "eligible member" does not exclude ex-officio members as it is silent thus by applying the doctrine of reading down, it can be concluded that ex-

officio members are not excluded from the definition thus would be eligible to vote in the meeting of No Confidence Motion. In the alternative to struck down the definition of "eligible member".

It has been argued that voting right in the meeting of No Confidence Motion has been given to those who participate in the election. We cannot accept aforesaid proposition when it goes against Article 243R of the Constitution of India so as section 6 of the Act of 2009. If intention would have been to deny right of voting to ex-officio members in the meeting, the Constitution of India and provisions of the Act would have been framed accordingly as otherwise it exist for nominated member. It is as per the proviso to Article 243R(2) and under Section 6 of the Act of 2009. Hence, argument raised by learned Advocate General cannot be accepted.

In view of the discussion made above, Rule 2(1)(b) of the Rules of 2017 is struck down if it excludes ex-officio member.

(D.B. SAW/435/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 02:48:12 AM) (12 of 15) [CW-11598/2018] In the light of the aforesaid, we hold that ex-officio members i.e. Members of the House of people and the Assembly have right to vote in a meeting for no confidence motion.

In view of the above, no confidence motion vitiate due to exclusion of ex-officio members and is, accordingly, set aside. It is moreso if they would have been included for vote, the result could have been different as the no confidence motion was not carried by margin so as to ignore the vote of ex-officio members. Learned Advocate General has prayed for application of judgment prospectively. We find that by this judgment, interpretation of the provisions of law has been made after taking into consideration the Constitution of India. The interpretation cannot otherwise be given prospective effect, otherwise, past action would exist in violation of the Constitution of India. In any case, we made it clear that this judgment would apply only in the case where challenge has been made to the no confidence motion. If somebody has not challenged No Confidence Motion then would not be governed by this judgment."

23. The Division Bench taking note of the plea of exclusion of ex-officio member from the ambit of the definition of "eligible member" struck down, Rule 2(1)(b), if it so contemplates and in no uncertain terms held that 'No Confidence Motion' would vitiate on that count alone. Accordingly, the 'No Confidence Motion' in the case of Rajkumar Jaiswal (supra), was set aside.

24. The Division Bench further observed that the judgment would apply only in the case where challenge has been made to the 'No Confidence Motion'. If somebody has not challenged the 'No Confidence Motion' carried, then the matter would not be governed by the adjudication in the case of Rajkumar Jaiswal (supra). The observations cannot be read to mean that the challenge to the 'No Confidence Motion' carried, in infraction to Rule 2(1)(b) of the Rules 2017, as adjudicated upon in the case (D.B. SAW/435/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 02:48:12 AM) (13 of 15) [CW-11598/2018] Rajkumar Jaiswal (supra); ought to have been laid on or before 17th May, 2018, i.e. date of adjudication in the case Rajkumar Jaiswal (supra).

25. The plea while resisting the claim of the petitioner in view of subsequent election to the post of Chairperson of Municipal Board, Bayana; finds complete answer in view of order made by the Division Bench on even date on an application instituted by the subsequently elected respondent therein, for his impleadment to the writ proceedings, observing thus:

"We have considered rival submissions made by learned counsel for the parties and perused the record.
The writ petition has been filed to challenge the constitutional validity of the Rules of 2017, and 'No confidence Motion'.
For the aforesaid, the applicant cannot be said to be either a necessary or a proper party as challenge to the constitutional validity of the Rules is to be defended by the State Government so as the procedure for No Confidence Motion.
Learned counsel for applicant submits that a further prayer is to hold the action during pendency of the writ petition to be illegal thus applicant having been elected, should be given an opportunity of hearing.
We have considered the aforesaid aspect also and it has been noticed that firstly, challenge is to be constitutional validity of the Rules of 2017, where Members of Parliament and Legislative Assembly have not been allowed to participate in No Confidence Motion. Based on the aforesaid, we do not find the applicant to be a necessary party. In absence of an interim order, if any elections have taken place and the applicant is elected, he cannot be considered to be either a necessary or a proper party to defend the case. It is moreso when the Division Bench of this court, while passing the order on 3 rd January, 2018, made it clear that nay action would be subject to final outcome of the writ petition. Hence, the action would be governed by the outcome of the petition and, for which, the applicant cannot be said to be a necessary party. It is (D.B. SAW/435/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 02:48:12 AM) (14 of 15) [CW-11598/2018] not that his election has been challenged so as to defend. Similar issue came up earlier also before this court and therein, the application was dismissed holding that subsequent election of a Chairperson would not make elected person to be necessary party.
Accordingly, application is dismissed."

26. Murli Manohar, whose application was declined for his impleadment to the writ proceedings in the case of Rajkumar Jaiswal (supra), vide order dated 17th May, 2018; approached the Apex Court of the land challenging legality, validity and correctness of adjudication in the case of Rajkumar Jaiswal (supra); the SLP has been declined vide order dated 31 st October, 2018.

27. The State-respondents vide Circular dated 22 nd January, 2019, have also issued a clarification as to definition of "eligible member" under the Rules of 2017, in consonance with the adjudication in the case of Rajkumar Jaiswal (supra).

28. In the case of Mamata Mohanty (supra), the Apex Court of the land dealt with the scope and issue of delay/laches/limitation under the Limitation Act, 1963, in the factual matrix of that case. The factual matrix of the case at hand is entirely different and distinguishable.

29. By now, it is well settled that rights to vote, right to elect or get elected, are the statutory rights and have to be exercised strictly within the four corners of the statutory contemplations therein.

30. Reference made to Article 243ZG(b) as to the bar to interference by Courts in electoral matters for no election to any Municipality is to be called in question except by an election petition presented to such authority and in such manner as (D.B. SAW/435/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 02:48:12 AM) (15 of 15) [CW-11598/2018] provided for by or under any law made by the legislature of a State; is misconceived. Section 31 of the Act of 2009, specifically contemplates that challenge to election of any person as a member of municipality may be made by institution of an election petition within one month from the date of election before the District Judge.

31. A conjoint reading of Article 243ZG (b) and Section 31 of the Act of 2009, would lead to inescapable conclusion that an election petition can be instituted only questioning the election of any person as a member of municipality. The proceedings as to 'No Confidence Motion' like one in the case at hand, are required to be carried out strictly in accordance with the Rules of 2017.

32. The issue, raised in the instant writ application, has already been raised, considered and adjudicated upon by the Division Bench in the case of Rajkumar Jaiswal (supra), confirmed by Supreme Court. Further, the State-respondents even did not challenge the adjudication in the case of Rajkumar Jaiswal (supra), before the Supreme Court.

33. For the reasons and discussions aforesaid and in the factual matrix of the case at hand, writ application succeeds and is hereby allowed.

34. The notice that carried 'No Confidence Motion' dated 14th March, 2018, is hereby quashed.

35. No costs.

(VEERENDR SINGH SIRADHANA),J Pooja/213 (D.B. SAW/435/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 02:48:12 AM) Powered by TCPDF (www.tcpdf.org)