Rajasthan High Court - Jaipur
Smt. Somya Gurjar Wife Of Shri Rajaram ... vs State Of Rajasthan on 26 March, 2021
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No.2975/2021
1. Smt. Somya Gurjar Wife Of Shri Rajaram Gurjar, Aged
About 37 Years, Resident Of 289, Taruchhaya Nagar, Tonk
Road, Jaipur.
2. Shri Punit Karnawat Son Of Shri Santosh Chandra
Karnawat, Aged About 52 Years, Resident Of 647,
Mahaveer Nagar, Tonk Road, Jaipur-302018
3. Smt. Sheel Dhabai Wife Of Shri Anil Kumar Dhabai, Aged
About 61 Years, Resident Of A-35-36, Govind Nagar,
Heerapura, Ajmer Road, Jaipur
4. Smt. Durgesh Nandni Wife Of Shri Digvijay Singh
Shekhawat, Aged About 45 Years, Resident Of Plot No.
216, Kalyan Path, 21 South Colony, Niwaru Road,
Jhotwara, Jaipur
5. Smt. Rakhi Rathore Wife Of Shri Naveen Singh
Shekhawat, Aged About 42 Years, Resident Of Gangiyasar
House, Queens Road, Near Jharkhand Mandir, Vaishali
Nagar, Jaipur
6. Shri Jitendra Shrimali Son Of Shri Kailash Chandra
Shrimali, Aged About 51 Years, Resident Of J-181, J,
Sangram Colony, Mahaveer Marg, C-Scheme, Jaipur.
7. Smt. Rashmi Saini Wife Of Shri Rajendra Kumar Saini,
Aged About 37 Years, Resident Of Charan Nadi,
Aaramachine, Bainad Road, Jhotwara, Jaipur
8. Smt. Sukhprit Bansal Wife Of Shri Sanjeev Bansal, Aged
About 37 Years, Resident Of 40B, Officers Campus Extn.
Vaishali Nagar, Jaipur
9. Shri Harish Kumar Sharma Son Of Shri Jagpravesh
Sharma, Aged About 56 Years, Resident Of 6A, Shiv Vihar
Extn., Mangyawas, Mansarovar, Jaipur
10. Shri Ramkishore Prajapat Son Of Shri Bhairu Lal Prajapat,
Aged About 41 Years, Resident Of B-14, Prem Nagar,
Khatipura Road, Jhotwara, Jaipur
11. Shri Abhay Purohit Son Of Shri Suresh Kumar Purohit,
Aged About 49 Years, Resident Of 119/347, Vikramaditya
Marg, Agrawal Farm, Jaipur-302020
12. Shri Ramswroop Meena Son Of Shri Ramnarayan Meena,
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Aged About 34 Years, Resident Of Main Market, Gunwaton
Ko Dhani, Jagatpura, Jaipur
13. Minakshi Sharma Wife Of Shri Shrikant Bhatra, Aged
About 39 Years, Resident Of Plot No. 246, Rameshwar
Dham, Murlipura, Jaipur
14. Shri Ajay Singh Chauhan Son Of Shri Rajendra Singh
Chauhan, Aged About 31 Years, Resident Of 31 Years,
Resident Of C-62, Tara Nagar, Khirni Phatak, Jhotwara,
Jaipur
15. Shri Paras Kumar Jain Son Of Shri Rajendra Kumar Jain,
Aged About 40 Years, Resident Of 67/64, Heera Path,
Mansarovar, Jaipur
16. Shri Ramesh Chand Saini Son Of Shri Chhitarmal Saini,
Aged About 64 Years, Resident Of 38, Sudama Nagar,
Infront Of Glass Factory, Tonk Road, Jaipur
17. Shri Arun Kumar Verma Son Of Shri Suresh Kumar, Aged
About 40 Years, Resident Of 123/71, Agrawal Farm,
Mansarovar, Jaipur
18. Smt. Bharti Lakhyani Wife Of Shri Mukesh Kumr Lakhyani,
Aged About 39 Years, Resident Of 123/281, Agrawal
Farm, Mansarovar, Jaipur
19. Smt. Archna Sharma Wife Of Shri Rajesh Kumar Sharma,
Aged About 38 Years, Resident Of 699, Ganesh Nagar
Main, Niwaru Road, Jhotwara, Jaipur
20. Shri Praveen Kumar Yadav Son Of Shri Amar Singh, Aged
About 47 Years, Resident Of G-34, Vaishali Nagar, Jaipur
21. Shri Vinod Chaudhary Son Of Shri Harlal Singh, Aged
About 65 Years, Resident Of 64, Sugriv Marg, Gom
Difense Colony, Viahsali Nagar, Jaipur-302021
----Petitioners
Versus
1. State Of Rajasthan, Through Secretary To The
Government Of Rajasthan, Department Of Local Self
Government, Administrative Secretariat, Jaipur.
2. The Director Cum Special Secretary, Local Bodies,
Government Of Rajasthan, Department Of Local Self
Government, Near Civil Lines Railway Crossing, Jaipur.
3. Commissioner, Municipal Corporation, Jaipur Greater, Lal
Kothi, Tonk Road, Jaipur.
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----Respondents
For Petitioner(s) : Mr. Rajendra Prasad, Senior Counsel assisted by Mr. Ashish Sharma, Adv., Mr. Harish C Kandpal, Adv.
For Respondent(s) : Mr. Anil Mehta, Addl. Advocate General with Mr. Yashodhar Pandey, Adv., Ms.Archana, Adv. & Mr.Mehul Harkawat, Adv.
Intervenor : Mr. Madhav Mitra, Adv.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
26/03/2021
The matter comes up for considering the prayer of interim relief as prayed by the petitioners in the stay application filed along-with the writ petition.
Learned Senior Counsel Mr.Rajendra Prasad submitted that the impugned order dated 25.02.2021 has been passed by the respondents whereby the State Government has exercised its power under sub-Section (4) of Section 49 read-with Section 327 of the Rajasthan Municipalities Act, 2009 (hereafter the Act of 2009).
Learned Senior Counsel submitted that the petitioner No.1 is elected Mayor and Ex-Officio Chairman of the Executive Committee of the Jaipur Municipal Corporation, Jaipur Greater and petitioner Nos.2 to 21 are elected Chairmen of 20 constituted committees of the Municipal Corporation, Jaipur Greater, so elected in the meeting held on 28.01.2021.
Learned Senior Counsel submitted that the petitioners after their election as Ward Member in the Municipal Corporation, Jaipur (Downloaded on 02/04/2021 at 08:53:17 PM) (4 of 16) [CW-2975/2021] Greater decided to hold the meeting on 28.01.2021 and in the first meeting of Board of Municipal Corporation, Jaipur Greater, 149 members were present, out of 150 elected members and in the meeting held on 28.01.2021, resolution was passed by majority consisting of 88 members of one political party and in the said resolution the Executive Committee and other mandatory Committees were constituted, consisting of members as per Section 55 and additional members as permitted by Section 56 of the Act of 2009.
Learned Senior Counsel submitted that additionally, a resolution was also passed for approval of State Government for seven more proposed committees and as such, the minutes of the meeting held on 28.01.2021 were sent for approval of the State Government by respondent No.3 the Commissioner, Municipal Corporation, Jaipur Greater.
Learned Senior Counsel submitted that the proceedings in the Board meeting were conducted as per the provisions contained in the Act of 2009 and the requirement of constituting committees was duly complied with by the petitioners.
Learned Senior Counsel submitted that the respondent No.3 had prepared a dissent note with regard to proposed seven additional committees and he forwarded the same to the State Government vide letter dated 01.02.2021.
Learned Senior Counsel submitted that the dissent note prepared by the respondent No.3, was contrary to the provisions of Section 49 of the Act of 2009.
Learned Senior Counsel submitted that the Chief Municipal Officer--respondent No.3 was required to record his dissent during (Downloaded on 02/04/2021 at 08:53:17 PM) (5 of 16) [CW-2975/2021] proceedings of the meeting and as such he was also further required to show that he had tendered his advice to the members if they committed violation of any provisions of the Act.
Learned Senior Counsel submitted that since at the time of passing of the resolution, no dissent note was put by the respondent No.3, the subsequent dissent note sent by respondent No.3, is contrary to mandatory provisions.
Learned Senior Counsel submitted that the impugned order dated 25.02.2021 has been passed on a wrong premise by the State Government by invoking provisions under sub-Section (4) of Section 49 and under Section 327 of the Act of 2009.
Learned Senior Counsel submitted that as per requirement of Section 55 of the Act of 2009 for constituting the committees in Municipalities, the Executive Committee was required to be constituted and further as per sub-Section (3) of Section 55 of the Act of 2009, different Committees which have been provided, were also required to be constituted.
Learned Senior counsel submitted that except the Executive Committee and the other committees which were constituted were also in consonance with the provisions contained in sub-Section (3) of Section 55 as the total number of committee could not be more than 10 members and as such, in all 21 committees were constituted and required number of members, were made as part of the committee.
Learned Senior Counsel submitted that Section 56 of the Act of 2009 gives power to the members of the Municipality to pass a resolution supported by not less than 1/2 of the whole number of members and other members can be appointed if in the opinion of (Downloaded on 02/04/2021 at 08:53:17 PM) (6 of 16) [CW-2975/2021] the Municipality, such persons possess special qualifications for serving the committee.
Learned Senior Counsel submitted that while passing the resolution the decision was taken that three persons in each 20 committees, were to be appointed exercising power under Section 56 by considering the special qualification.
Learned Senior counsel submitted that the State Government while passing the order dated 25.02.2021 has taken into account the dissent note which was sent by the Commissioner-the respondent No.3, wherein his objection was with regard to additional 7 committees only.
Learned Senior Counsel submitted that the impugned order has given additional reason that the members who have been selected under Section 56 to be part of the committee, are not validly taken in the said committee by the petitioners while passing the resolution.
Learned Senior counsel submitted that the State Government has further wrongly exercised its revisional power under Section 327 of the Act of 2009.
Learned Senior counsel submitted that even for exercising the power under Section 327, the State Government is required to see correctness or propriety of any order passed by the Municipality only after calling the relevant record.
Learned Senior counsel submitted that in the present case except the dissent note, no other record was called by the respondent-State.
Learned Senior counsel further submitted that though power was not available under Section 327 to cancel the resolution (Downloaded on 02/04/2021 at 08:53:17 PM) (7 of 16) [CW-2975/2021] passed by validly elected members, however, assuming that Government wanted to exercise its powers at least notice ought to have been given to the persons who were affected by such decision of the State Government.
Learned Senior counsel further submitted that the requirement of approval of the State Government for Additional Committee is provided under sub-Section (3) of Section 55 clause- VII proviso.
Learned Senior counsel submitted that the State Government has wrongly construed the proposal of the Municipal Corporations of appointing additional seven committees without its approval.
Learned Senior counsel submitted that the resolution which was passed though had appointed members in the Additional Committees, however, the same was to take affect only after approval of the State Government and as such, the Municipal Corporation had passed the resolution for seeking proper approval for additional committee.
Learned Senior counsel further submitted that the allegation against the petitioners while passing the impugned order that compliance of Section 56 was not made, is also not correct.
Learned Senior counsel submitted that the requirement of Section 56 was only to the effect of resolution supported by not less than 1/2 of the whole number of members to appoint members of the Committee under Section 55 of the Act of 2009 and such persons in the opinion of the Municipal Board, possess special qualification for serving on such committee.
Learned Senior counsel submitted that since there are no special qualification prescribed, the decision was taken by passing (Downloaded on 02/04/2021 at 08:53:17 PM) (8 of 16) [CW-2975/2021] the resolution that certain persons were required to be inducted in the Committee by exercising power under Section 56 of the Act of 2009.
Learned Senior counsel submitted that the reasons assigned in passing the impugned order that the members appointed as per Section 56, did not disclose with regard to their eligibility of having required qualification and not disclosing their Special Qualification, does not make the decision of the Board vulnerable in the eyes of law.
Learned Senior Counsel submitted that special qualifications are to be kept in mind while taking the decision and as such on that count, the State Government cannot take a decision that persons who have been taken as members by invoking Section 56 do not fulfill the conditions or they suffer from any disqualification prescribed under the Act of 2009.
Learned Senior counsel submitted that the State Government has acted in arbitrary manner in depriving the majority of the elected members to function in a democratic way and if the resolution has duly been passed, the same cannot be annulled or cancelled by the State Government.
Learned Senior counsel further submitted that the perusal of resolution, which has been placed on record before this Court as Annexure-1, clearly reflects that the agenda No.3 was put before the Board with respect to constitution of committee.
Learned Senior Counsel submitted that if the agenda was discussed in the meeting and then, final decision was taken, no illegality can be attached to such resolution of Appointing Committees as per provisions of law.
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(9 of 16) [CW-2975/2021] Learned Addl. Advocate General Mr. Anil Mehta has appeared on behalf of the State.
Learned Addl. Advocate General Mr. Anil Mehta has submitted that the State Government has rightly exercised its powers and has accordingly issued the order dated 25.02.2021.
Learned Addl. Advocate General has submitted that the action of the Municipal Corporation while passing the resolution in the first Board of meeting held on 28.01.2021, speaks volumes of illegality committed while passing Agenda No.3 with respect to constitution of the committees.
Learned Addl. Advocate General submitted that the perusal of minutes of the Board Meeting would reflect that the Agenda No.3 with respect to constitution of the Committees, was not taken on its own order and was taken as a last Agenda.
Learned Addl. Advocate General submitted that there was a violation of Rule 15 of the Rajasthan Municipalities (Conduct of Business) Rules, 2009 (hereinafter referred to as 'the Rules of 2009') which provides that the business of day shall ordinarily be followed according to the agenda.
Learned Addl. Advocate General submitted that since Agenda No.3 was to be discussed in the same order and as such, the word 'ordinarily' which is used in Rule 15 does not mean that such an important agenda of constitution of the committee, was to be taken as the last agenda.
Learned Addl. Advocate General submitted that when Agenda No.3 was taken up for discussion, on its turn, the same was skipped over as it reflected from the proceedings. (Downloaded on 02/04/2021 at 08:53:17 PM)
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Learned Addl. Advocate General submitted that the
procedure which was adopted clearly reflects that members were not given adequate opportunity to discuss the important agenda No.3 and in hasty manner, the entire proceedings were conducted.
Learned Addl. Advocate General submitted that the requirement of appointing members of the committee, as per Section 56, cannot be made use by any Municipal Body, while they appoint committees under Section 55 of the Act of 2009.
Learned Addl. Advocate General submitted that Section 56 provides that if any municipal body feels from time to time that certain members are to be appointed in the committees under Section 55, then such decisions are to be taken as per requirement.
Learned Addl. Advocate General submitted that appointment of three members as per Section 56 in the Committee Constituted under Section 55, is not permissible and it is against the very spirit of Section 56 of the Act.
Learned Addl. Advocate General further submitted that the requirement under Section 56 (1) of the Act is that persons who are appointed in Committee must possess special qualifications for serving on such Committee.
Learned Addl. Advocate General submitted that the proceedings nowhere recorded that persons who have been taken as member of the Committee, possess special qualifications.
Learned Addl. Advocate General submitted that the requirement under Section 56 of special qualification may not have been defined under the Act of 2009, however, the same does not mean that any member can be picked for appointment as member of the committee.
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Learned Addl. Advocate General submitted that the
committees which are constituted for Municipal Bodies, discharge statutory functions as per Section 66 of the Act of 2009.
Learned Addl. Advocate General submitted that in absence of any details with regard to the special qualifications, eligibility, disqualification, if any, or any disability, not known to the State Government or for that matter even the members of the Board were not made aware and as such the persons who are inducted in the Committee, exercising powers under Section 56, if permitted to work, will be working against the provisions contained under Section 61 of the Act of 2009.
Learned Addl. Advocate General further submitted that the allegation of the petitioners that since they belong to a different political party and as such State Government has taken a motivated decision, the same is not correct fact as the State Government has permitted the constitution of committees in Municipal Corporation, Jodhpur (South) and to the same effect documents have also been filed with the reply.
Learned Addl. Advocate General further submitted that the State Government was within its domain to use power under Section 327 as an illegal order was passed by the Municipal Corporation and if illegal order is passed then State cannot remain a mute spectator and allow things to go on.
Learned Addl. Advocate General submitted that purpose of invoking the Section 327 of the Act was to stop the illegality committed and to be perpetuated by the petitioners.
Learned Addl. Advocate General further submitted that the allegation of the petitioners that they were not given hearing, is (Downloaded on 02/04/2021 at 08:53:17 PM) (12 of 16) [CW-2975/2021] wholly unsustainable, as no purpose would have been served to give notice to the petitioners.
Learned Addl. Advocate General submitted that theory of useless formality is applicable in the present facts of the case since the appointment of the members in the committee was prima facie illegal, no hearing was required to be given before passing the order.
Learned Addl. Advocate General further submitted that prayer which is made in the stay application is also like granting final relief and as such this Court while exercising the power under Article 226 of the Constitution, may not grant such relief which may be like granting final relief.
Learned Addl. Advocate General further submitted that the State Government is conferred power under provisions of the Act of 2009 to see that all the Municipal Bodies work according to requirement of law and further the elected members are also bound to follow the law and as such in the present case, the resolution which has been passed by the members, cannot be termed lawful and as such the State Government was constrained to issue the order.
Learned counsel Mr. Madhav Mitra appearing for the intervener has adopted the arguments of learned Addl. Advocate General and he has further added that the manner in which the members have been selected as per Section 56, clearly reflect that no details were available of such persons who have been taken in the committees, even their names, their address, their mobile numbers and nothing was available to the other members to verify the correctness or eligibility of such persons to be appointed. (Downloaded on 02/04/2021 at 08:53:17 PM)
(13 of 16) [CW-2975/2021] Learned Senior Counsel Mr. Rajendra Prasad, in rejoinder, submitted that the reasons which are given before this Court to support the order, does not require to be looked into by this Court. He further submitted that this Court is to consider the reason which has been assigned in the impugned order.
Learned Senior Counsel submitted that the objection with regard to the disqualification or special qualification of the members which have been taken as per Section 56, is nowhere reflected in the impugned order.
Learned Senior Counsel further submitted that if the State has any grievance or they question the eligibility of any of the member, the same could have been done by them by asking the explanation of such candidate.
Learned Senior Counsel further submitted that the Commissioner of Municipal Corporation is a Chief Executive Officer, who is a representative of the State to see the interest of the State Government and to see the compliance of the provisions of the Act and if issue was with regard to the eligibility or disqualification of any member, the State Government could have asked the comments from such officer and thereafter could have taken any decision.
Learned Senior Counsel further submitted that power under Section 327 of the Act of 2009 can be exercised in very exceptional cases and in the present case, no such exceptional power was available and the State Government cannot be allowed to exercise the power in such an arbitrary and undemocratic manner.
Learned Senior Counsel also submitted that the reasons which are initially given while passing the impugned order cannot (Downloaded on 02/04/2021 at 08:53:17 PM) (14 of 16) [CW-2975/2021] be supplemented by the State Government by filing subsequent affidavit or by bringing new facts into notice of the Court.
Learned Senior Counsel places reliance on a judgment reported in AIR 1978 SC 851, Mohinder Singh Gill and another Versus The Chief Election Commissioner, New Delhi & Ors.
I have heard the submissions made by learned counsel for the parties.
This Court has to consider the prima facie case, irreparable loss, and balance of inconvenience for considering prayer of interim relief.
This Court prima facie finds that the Municipal Corporation or for that matter any municipal body has to function for discharging the duties which are assigned to these members and this Court further finds that different committees are required to be formed for taking care of different duties which have been assigned for maintenance of the municipal area.
This Court further finds that the Act of 2009 provides that all the functions in the municipal board will be discharged by the committees which are appointed under the provisions of the Act of 2009.
This Court finds that the resolution dated 28.01.2021 was passed by majority of the members and they decided that the committees are required to be constituted. The constitution of Executive Committee, as per Section 55(1) is not questioned by the State Government.
This Court further finds that the issue with regard to the formation of committee was decided in the meeting by taking (Downloaded on 02/04/2021 at 08:53:17 PM) (15 of 16) [CW-2975/2021] three persons in each committee (20) by taking recourse to the powers conferred under Section 56 of the Act of 2009.
This Court prima facie finds that there is no definition of "special qualifications" under the Act and as such persons can be appointed in that category as per provisions contained to Section 56 of the Act of 2009.
This Court prima facie finds that the resolution which has been passed by inducting certain members and the limit of members which is prescribed for formation of committee, is not violated while inducting the members under Section 56 of the Act of 2009.
This Court prima facie finds that the entire dispute in the present case arose from the letter of dissent which was written by the respondent No.3 to the State Government.
This Court, on perusal of the dissent note, finds that the objection was with respect to the additional 7 committees which were constituted without prior approval of the State Government.
This Court further finds that as per requirement of Section 49 of the Act of 2009, the Chief Municipal Officer i.e. Commissioner was absolutely within his domain/power to tender his advise against any illegality, the first meeting of board while passing the resolution and requirement under sub-section (2) of Section 49 means that the note of dissent, can also be put in such proceedings.
Prima facie this Court finds that except the letter which is written by the respondent No.3 of his dissent note, there was no other material by which it could be inferred that such officer had raised any issue with regard to formation of committee while passing the resolution.
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(16 of 16) [CW-2975/2021] This Court prima facie finds that the issue with regard to the disqualification or possessing special qualification has not been raised in the letter which is written by the respondent No.3 to the State Government.
This Court prima facie finds that the State Government had received input from respondent No.3 about constitution of committee and the material which was available with the State Government, was with regard to the dissent note.
This Court further finds that if the State Government had to use its powers under Section 327 of the Act of 2009, the other requirement ought to have been kept in mind while taking such decision.
This Court further finds that the State Government prima facie has used its power only on the ground that the order does not meet with the requirements as prescribed under Section 56 of the Act of 2009. The resolution which has been passed is as per Section 56 of the Act of 2009, the members who have been so taken in the committee, does not violate the limit of maximum members and further the decision has been taken by the majority of the members in the resolution and as such does not reflect the prima facie, that any illegality has been committed.
Accordingly, this Court prima facie finds that the matter requires consideration for deciding the main controversy and as such the writ petition is kept for final disposal at this stage on 29.04.2021.
In the meanwhile, the effect and operation of the order dated 25.02.2021, shall remain stayed.
(ASHOK KUMAR GAUR),J
Ramesh Vaishnav /86/Himanshu Soni 255
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