Rajasthan High Court - Jodhpur
Monika vs State Of Rajasthan on 12 March, 2025
Author: Nupur Bhati
Bench: Nupur Bhati
[2025:RJ-JD:11223]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 13740/2024
Monika W/o Shri Omprakash, Aged About 39 Years, Resident Of
Ward No. 29, Nohar, District Hanumangarh.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Local Self
Department, Jaipur.
2. The Director Cum Joint Secretary, Directorate, Local Self
Department, Jaipur.
3. The Deputy Director (Administration), Local Self
Department, Jaipur.
----Respondents
Connected With
S.B. Civil Writ Petition No. 2420/2024
Monika W/o Shri Omprakash, Aged About 39 Years, Resident Of
Ward No. - 29, Nohar, District-Hanumangarh.
----Petitioner
Versus
1. State Of Rajasthan, Through The Director Cum Special
Secretary, Directorate, Local Self Department, Jaipur.
2. The District Collector, Hanumangarh.
3. The Sub-Divisional Officer, Nohar, District- Hanumangarh.
----Respondents
S.B. Civil Writ Petition No. 10455/2024
Monika W/o Shri Omprakash, Aged About 39 Years, Resident Of
Ward No. - 29, Nohar, District - Hanumangarh.
----Petitioner
Versus
1. State Of Rajasthan, Through The Director Cum Joint
Secretary, Directorate, Local Self Department, Jaipur.
2. The Deputy Director (Regional), Local Self Department,
Bikaner.
3. The District Collector, Hanumangarh.
----Respondents
For Petitioner(s) : Mr. Sunil Purohit
Mr. Ankur Mathur
For Respondent(s) : Mr. Rajesh Panwar, Sr. Advocate and
AAG assisted by Mr. Monal Chugh
Mr. Moti Singh
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[2025:RJ-JD:11223] (2 of 24) [CW-13740/2024]
HON'BLE DR. JUSTICE NUPUR BHATI
JUDGMENT
Reserved on 25/02/2025 Pronounced on 12/03/2025
1. The instant writ petitions have been filed by the petitioner under Article 226 of the Constitution of India. The S.B.C.W.P. No.13740/2024 has been filed challenging the order dated 13.08.2024 (Annex.15) whereby the petitioner has been placed under suspension. The S.B.C.W.P. No.2420/2024 has been filed challenging order dated 06.02.2024 (Annex.3) whereby an enquiry was initiated against the petitioner. The S.B.C.W.P. No.10455/2024 has been filed challenging the order dated 21.06.2024 (Annex.11) whereby a show cause notice has been issued against the petitioner seeking explanation from the petitioner for the charges framed against her. As common question of law and facts are involved in these writ petitions, the same are being decided by this common order and the facts of S.B.C.W.P. No.13740/2024 are being taken illustratively.
2. Briefly stated the facts of the case are that the petitioner was elected as councilor in the year 2021 and subsequently was elected as Chairperson of the Municipal Board, Nohar. During her tenure as Chairperson, a complaint dated 25.01.2024 (Annex.1) was filed by Mr. Dinesh Singh Bhati against the petitioner before the Director-cum-Joint Secretary, Directorate, Local Self Department, Jaipur (Respondent No.2) requesting her suspension on the basis of FIR Nos.479/2023 and 440/2023 filed against her. Subsequently, the respondent no.2, on instructions of Hon'ble Minister, Urban Development and Local Self Government (Downloaded on 19/03/2025 at 09:20:23 PM) [2025:RJ-JD:11223] (3 of 24) [CW-13740/2024] Department (Independent Charge), Government of Rajasthan, appointed District Collector, Hanumangarh vide order dated 06.02.2024 (Annex.3) for enquiring the allegations levelled against her in the complaint (Annex.1). The Additional District Collector, Nohar submitted the report dated 09.02.2024 (Annex.4) wherein, the finding was given that FIRs have been falsely lodged against the petitioner and no offence has been found to be committed by the petitioner. Subsequently, the Additional District Collector, Nohar vide order dated 13.02.2024 (Annex.5) directed Sub-Divisional Officer, Nohar to make enquiry in the same matter. Thus, aggrieved by the order dated 06.02.2024 (Annex.3) the petitioner filed S.B.C.W.P. No.2420/2024 before this court. Subsequently, a show-cause notice dated 23.02.2024 (Annex.7) under Section 39 (1) of the Rajasthan Municipalities Act, 2009 (hereinaftere as 'the Act') was issued to the petitioner seeking explanation on the charges as framed against her therein. On 26.02.2024 the petitioner filed an additional affidavit highlighting the subsequent development in the matter and this court vide interim order dated 26.02.2024 (Annex.8) restrained the respondents from passing any order placing the petitioner under suspension. In the meanwhile the petitioner filed the reply dated 26.02.2024 (Annex.9) to the show-cause notice dated 23.02.2024 (Annex.7) denying the charges as framed thereunder. 2.1. Subsequently, Mr. Gurusevak Singh Dhariwal filed the complaint dated 08.03.2024 (Annex.10) before the Hon'ble Chief Minister, Government of Rajasthan alleging inter-alia the illegality on the part of the petitioner in issuance of patta. Thereafter, the respondent no.2 issued show-cause notice dated 21.06.2024 (Downloaded on 19/03/2025 at 09:20:23 PM) [2025:RJ-JD:11223] (4 of 24) [CW-13740/2024] (Annex.11) under Section 39 (1) of the Act to the petitioner seeking explanation on the charges as framed against her thereunder. Aggrived by the show-cause notice dated 21.06.2024 (Annex.11), the petitioner filed S.B.CWP No.10455/2024 before this court. In the meanwhile the petitioner filed reply (Annex.13) to the show-cause notice dated 21.06.2024 (Annex.11) denying the charges as framed thereunder.
2.2. Thereafter, the respondents, after considering the reply (Annex.11) of the petitioner and the enquiry report dated 12.06.2024 (Annex.R/1), vide order dated 13.08.2024 (Annex.15) placed the petitioner under suspension under Section 39 (6) of the Act and also initiated judicial enquiry against her under Section 39 (3) of the Act. Aggrieved by the order dated 13.08.2024 (Annex.15), the petitioner has filed S.B.CWP No.13740/2024 before this court.
S.B.CWP No.2420/2024:-
3. The instant writ petition has been filed seeking following relief:
"i) By an appropriate writ, order or direction, the impugned order dated 06.02.2024 (Annexure-3) passed by the respondent authorities may kindly be declared illegal and be quashed and set aside.
ii) By an appropriate writ, order or direction, the respondent authorities may kindly be directed to drop the entire proceedings initiated against the petitioner on the basis of so-called complaint dated 25.01.2024 (Annexure-
2).
iii) Any other appropriate order or direction which this Hon'ble Court may deem fit just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.
iv) Costs of the writ petition may kindly be awarded to the petitioner."(Downloaded on 19/03/2025 at 09:20:23 PM)
[2025:RJ-JD:11223] (5 of 24) [CW-13740/2024]
4. Learned counsel for the petitioner submitted that impugned order dated 06.02.2024 (Annex.3) has been issued on the instance of Hon'ble Minister, Urban Development and Local Self Government Department (Independent Charge), Government of Rajasthan. He also submitted that the complaint dated 25.01.2024 (Annex.1) was filed on the basis of the FIR Nos.479/2023 and 440/2023 lodged against the petitioner however, in both these FIRs negative final reports have been submitted, hence there was no need to conduct enquiry against the petitioner. He also submitted that in the enquiry report dated 09.02.2024 (Annex.4) it is categorically mentioned by the Additional District Collector, Nohar that these FIRs have been falsely lodged against the petitioner and no offence has been committed by the petitioner.
5. Learned counsel for the petitioner further submitted that vide order dated 06.02.2024 (Annex.3) the District Collector, Nohar was appointed as enquiry officer, however, he has further delegated the task of conducting enquiry to Additional District Collector, Nohar and Sub-Divisional Officer, Nohar, which is not permissible in law.
6. Learned AAG made a submission that he has instruction not to oppose S.B.CWP No.2420/2024.
7. Heard the counsel for the parties.
8. Upon perusal of the enquiry report dated 09.02.2024 (Annex.-4), it is reflected that as per the final report for FIR No.0479/2023 dated 11.10.2023, after completion of the investigation, it was found that neither the petitioner has fabricated any evidence nor has she made any false declaration by way of furnishing any false affidavit. The complaint lodged by the (Downloaded on 19/03/2025 at 09:20:23 PM) [2025:RJ-JD:11223] (6 of 24) [CW-13740/2024] complainant, Mr. Fariyad Mohammad, was found to be a result of personal vendetta against the petitioner, who was holding the post of Chairman, Municipal Board, Nohar, and was found to be false. Further, for the other FIR bearing No.0440/2023 dated 20.09.2023, the investigation did not reveal that the accused Shiv Bhagwan and others, had committed any fraud by way of forgery and thus, no offences under Sections 420, 467, 471, 487, 193 and 198 of the Indian Penal Code, were found to be committed. Thus, it was observed in the enquiry report that in pursuance to both the FIRs Negative Final Report was chalked out after completion of investigation, therefore, it was concluded in the enquiry report dated 09.02.2024 (Annex.-4), that the petitioner has not committed any offence as alleged in both the aforesaid FIRs.
9. Thus, taking into consideration the fact that after thorough investigation, it was concluded that the petitioner is not found guilty of any offence coupled with the fact that the learned AAG does not want to oppose the instant writ petition, the Communication dated 06.02.2024 (Annex.-3), is quashed and set aside qua the allegations levelled against the petitioner in Complaint dated 25.01.2024 (Annex.-1) only.
10. Accordingly, the instant writ petition is allowed in the aforesaid terms. Pending application (s), if any shall also stand disposed of. S.B.CWP No.10455/2024:
11. The instant writ petition has been filed seeking following relief:
"i) By an appropriate writ, order or direction, the impugned show cause notice dated 21.06.2024 (Annexure-11), issued by the respondent No. 1 may kindly be declared illegal and be quashed and set aside.(Downloaded on 19/03/2025 at 09:20:23 PM)
[2025:RJ-JD:11223] (7 of 24) [CW-13740/2024]
ii) Any other appropriate order or direction which this Hon'ble Court may deem fit just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.
iii) Costs of the writ petition may kindly be awarded to the petitioner."
12. Learned counsel for the petitioner submitted that the instant writ petition was filed challenging the show-cause notice dated 21.06.2024 (Annex.11), however, in pursuance to the said show- cause notice, the petitioner has been placed under suspension vide order dated 13.08.2024 (Annex.15), thus, as such the instant writ petition has become infructuous.
13. Therefore, the instant writ petition, having become infructuous, is dismissed.
S.B.CWP No.13740/2024:
14. The instant writ petition has been filed seeking following relief:
"i) By an appropriate writ, order or direction, the Impugned suspension order dated 13.08.2024 (Annexure-15), passed by the respondent No. 2 may kindly be declared illegal and be quashed and set aside.
ii) Any other appropriate order or direction which this Hon'ble Court may deem fit just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.
iii) Costs of the writ petition may kindly be awarded to the petitioner."
15. Learned counsel appearing for the caveator - Mr. Gurusevak Singh (hereinafter as the 'applicant') submitted that applicant has filed application under Article 226 read with Order I Rule 10 for impleadment as party respondent in the instant writ petition. He submitted that the petitioner has illegaly issued patta dated 06.09.2023 to her husband for the land which belongs to the (Downloaded on 19/03/2025 at 09:20:23 PM) [2025:RJ-JD:11223] (8 of 24) [CW-13740/2024] family of the applicant, and he filed the complaint dated 08.03.2024 (Annex.10) against the petitioner in pursuance of which the enquiry was initiated and ultimately suspension order (Annex.15) was passed. He, thus, submitted that the applicant is a necessary party and should be impleaded in the instant writ petition.
16. Learned counsel for the petitioner submitted that the applicant is not a necessary party as the instant writ petition has been filed challenging the suspension order dated 13.08.2024 (Annex.15) which has nothing to do with the applicant.
17. Learned counsel for the petitioner, while drawing attention of this court to note sheet dated 05.02.2024 (Annex.2), submitted that the suspension order dated 13.08.2024 (Annex.15) has been passed due to political rivalry as the Hon'ble Minister, Urban Development and Local Self Government Department (Independent Charge), Government of Rajasthan has directed to initiate enquiry and proceedings for suspension of petitioner.
18. Learned counsel for the petitioner also submitted that the respondents issued show-cause notice dated 21.06.2024 (Annex.11) in order to thwart the interim order dated 26.02.2024 (Annex.8) passed by this court in S.B.CWP No.2420/2024, whereby the respondents were restrained from passing any order placing the petitioner under suspension. He also submitted that all the charges in show-cause notice dated 21.06.2024 (Annex.11) are similar to the earlier show-cause notice dated 23.02.2024 (Annex.7). He also submitted that the impugned suspension order dated 13.08.2024 (Annex.15) has been passed thwarting the (Downloaded on 19/03/2025 at 09:20:23 PM) [2025:RJ-JD:11223] (9 of 24) [CW-13740/2024] interim order dated 26.02.2024 (Annex.8) passed by this court in S.B.CWP No.2420/2024.
19. Learned counsel for the petitioner submitted that petitioner has been erroneously placed under suspension on the ground that petitioner has illegally issued the patta dated 06.09.2023 (Annex.14 colly) to her husband for plot no.186 in khasra no.40 of the approved scheme whereas no such plot no.186 exists in the map of approved scheme of Khasra no.40 and the same exists in Khasra no.41/1. He submitted that this was a bona fide clerical mistake which has been admitted by the junior engineer in his reply dated 19.11.2024 (Annex.19) to the show-cause notice issued to him. He also submitted that even otherwise the petitioner being chairman was not supposed to doubt the site report presented by the junior engineer in note sheet (Annex.14) of Municipal Board, Nohar wherein plot no.186 was stated to be in Khasra no.40 of the approved scheme. He also submitted, while drawing attention of this court to note sheet (Annex.14 colly), that the petitioner has only written in the note sheet that 'proceed in accordance with law' hence, the petitioner has not influenced anyone in any way to issue patta (Annex.14 Colly.) in favour of her husband. For this submission the learned counsel for the petitioner has placed reliance on an interim order dated 06.01.2025 passed by a coordinate bench of this court in Gautam Tak v. State of Rajasthan [S.B.CWP No.14844/2024].
20. Learned counsel for the petitioner also submitted that the patta dated 06.09.2023 (Annex.14 Colly) has signatures of other officers as well however, only the petitioner has been suspended whereas no proceeding has been undertaken against these officers (Downloaded on 19/03/2025 at 09:20:23 PM) [2025:RJ-JD:11223] (10 of 24) [CW-13740/2024] which shows that the respondents are intentionally targeting the petitioner to please the Hon'ble Minister.
21. Per contra, learned AAG has submitted that the impugned suspension order dated 13.08.2024 (Annex.15) has been passed pursuant to a different complaint dated 08.03.2024 (Annex.10) and on a completely different set of facts hence, the respondents have not taken any action in contravention of the interim order dated 26.02.2024 (Annex.8) passed by this court in S.B.CWP No.2420/2024.
22. Learned AAG has also submitted that the interim order dated 06.01.2025 passed by the coordinate bench of this court in Gautam Tak (Supra) has no relevance in the present case for the reason that in the present case the petitioner has conferred undue benefit upon her husband by issuing patta on 06.09.2023 (Annex.14 Colly.). He also submitted that the duties of the chairman as provided under the Act cannot be neglected. He also submitted that the submission of the counsel for the petitioner that only the petitioner is being targeted and no proceedings have been undertaken against the other officers is based on wrong facts as the appropriate proceedings have already been initiated against all the concerned persons.
23. Learned AAG, while placing reliance upon the judgment passed by a co-ordinate bench of this court in Nirmal Kumar Pitaliya v. State of Rajasthan [S.B.CWP No.17285/2021 decided on 01.02.2022], has submitted that the competent authority after applying its mind and after following due process of law has arrived at the conclusion that it is a fit case to place the petitioner under suspension by invoking discretionary power under (Downloaded on 19/03/2025 at 09:20:23 PM) [2025:RJ-JD:11223] (11 of 24) [CW-13740/2024] Section 39 (6) of the Act hence, no occasion arises for this court to interfere in the matter. He also submitted that it clearly appears from the facts and circumstances of the instant case that the petitioner has conferred undue benefit on her husband by issuing the patta (Annex.8) while ignoring her statutory duties and functions under Section 48 of the Act. He has also placed reliance upon a judgment passed by a co-ordinate bench of this court in Manish Mohan v. State of Rajasthan and Ors. [S.B.CWP No.6789/2023, decided on 24.05.2023].
24. Learned AAG has also submitted that the note sheet pertaining to patta (Annex.14 colly.) does not bear the signature of executive officer after the note which reads as: 'दै निक समाचार-पत्र में आपत्ति सूचना का प्रकाशन करावें ।'. He also submitted, while drawing attention of this court to the 'Notice inviting Public Objection' dated 31.07.2023 (Annex.14 Colly.) with respect to the issuance of patta (Annex.8), that the column which refers to the 'Plot no.' has been left blank. He also submitted that the agreement dated 06.05.2022 (Annex.14 Colly.) between the husband and father-in- law of the petitioner does not confer any right upon the husband of the petitioner and also the same does not contain any particulars of the Khasra number of the estate mentioned therein. He submitted that these documents prima facie show the irregularity and illegality committed by the petitioner while issuance of the patta dated 06.09.2023 (Annex.14 Colly.) to her husband.
25. In rebuttal the learned counsel for the petitioner has submitted that the learned AAG is arguing beyond the enquiry report dated 12.06.2024 (Annex.R/1) based on which the (Downloaded on 19/03/2025 at 09:20:23 PM) [2025:RJ-JD:11223] (12 of 24) [CW-13740/2024] petitioner has been placed under suspension as there is no finding regarding the irregularities.
26. In sur-rebuttal the learned AAG has submitted that the disputed questions of fact as raised by the petitioner are in the domain of the judicial enquiry officer appointed under Section 39 (3) of the Act and the same cannot be decided by this court in view of the limited jurisdiction of this court under Article 226 of the Constitution of India.
27. Heard the counsel for the parties and perused the material available on record.
28. This court finds that the applicant had filed a complaint (Annex.10) against the petitioner and based on the complaint enquiry was conducted against the petitioner and subsequently, the petitioner was placed under suspension vide order dated 13.08.2024 (Annex.15). The petitioner has preferred the instant writ petition being aggrieved of the order dated 13.08.2024 by which she has been placed under suspension, which is a subject- matter between the petitioner and the State Government and the petitioner has not claimed any relief against the applicant. Thus, this court finds that the applicant cannot be said to be a necessary and proper party for adjudication of the instant writ petition. Therefore, the impleadment application filed by the applicant is dismissed.
29. At this juncture, this court finds it appropriate to refer to the relevant provisions of the Act as well as the case laws with respect to the suspension of the chairman who is an elected representative.
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30. Section 39 of the Act provides for the 'removal of member' of a municipality. The same reads as under:
"39. Removal of member. - (1) The State Government may, subject to the provisions of sub-Sections (3) and (4), remove a member of a Municipality on any of the following grounds, namely: -
(a) that he has absented himself for more than three consecutive general meetings, without leave of the Municipality:
Provided that the period during which such member was a jail as an under trial prisoner or as a detenue or as a political prisoner shall not be taken into account,
(b) that he has failed to comply with the provisions of Section 37,
(c) that after his election he has incurred any of the disqualification mentioned in Section 14 or Section 24 or has ceased to fulfil the requirements of Section 21,
(d) that he has
(i) deliberately neglected or avoided performance of his duties as a member, or
(ii) been guilty of misconduct in the discharge of his duties, or
(iii) been guilty of any disgraceful conduct, or
(iv) become incapable of performing his duties as a member, or
(v) been disqualified for being chosen as member under the provisions of this Act, or
(vi) otherwise abused in any manner his position as such member:
Provided that an order of removal shall be passed by the State Government after such inquiry as it considers necessary to make either itself or through such existing or retired officer not below the rank of State level services or authority as it may direct and after the member concerned has been afforded an opportunity of explanation.
(2) The power conferred by sub-Section (1) may be exercised by the State Government of its own motion or upon the receipt of a report from the Municipality in that behalf or upon the facts otherwise coming to the knowledge of the State Government:
Provided that, until a member is removed from office by an order of the State Government under this Section, he shall not vacate his office and shall, subject to the provisions contained in sub-Section (6), continue to act as, and exercise all the powers and perform all the duties of, a member and shall as such be entitled to all the rights and be subject to all the liabilities, of a member under this Act.
(3) Notwithstanding anything contained in sub-Section (1) where it is proposed to remove a member on any of the grounds specified in clause (c) or clause (d) of sub-Section (1), as a result of the inquiry referred to in the proviso to that sub-Section and after hearing the explanation of the member concerned, the State Government shall draw up a statement setting out distinctly the charge against the member and shall send the (Downloaded on 19/03/2025 at 09:20:23 PM) [2025:RJ-JD:11223] (14 of 24) [CW-13740/2024] same for enquiry and findings by Judicial Officer of the rank of a District Judge to be appointed by the State Government for the purpose.
(4) The Judicial Officer so appointed shall proceed to inquire into the charge, hear the member concerned, if he makes appearance, record his findings on each matter embodied in the statement as well as on every other matter he considers relevant to the charge and send the record along with such findings to the State Government, which shall thereupon either order for re- inquiry, for reasons to be recorded in writing, or pass final order. (5) While hearing an inquiry under sub-Section (4), the Judicial Officer shall observe such rules of procedure as may be prescribed by the State Government and shall have the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908 (Central Act No. 5 of 1908) while trying a suit in respect of the following matters, namely:
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any such document or any other material as may be predicable in evidence;
(c) requisitioning any public record; and
(d) any other matter which may be prescribed. (6) Notwithstanding the foregoing provisions of this Section, the State Government may place under suspension a member against whom proceedings have been commenced under this Section until the conclusion of the inquiry and the passing of the final order and the member so suspended shall not be entitled to take part in any proceedings of the Municipality or otherwise perform the duties of a member thereof.
(7) Every final order of the State Government passed under this Section shall be published in the Official Gazette and shall be final and no such order shall be liable to be called in question in any Court."
30.1. Thus, Section 39 (1) of the Act provides for the grounds from clauses (a) to (d) on which the State Government can remove a member of a municipality. Section 39 (2) provides that the power under sub-section (1) of Section 39 can be exercised by the State Government either suo-moto or upon the receipt of a report from the municipality in this behalf or upon the facts otherwise coming to the knowledge of the State Government. The first proviso attached to Section 39 (1) provides that a member can be removed only after an enquiry either by the State Government itself or through such existing or retired officer (Downloaded on 19/03/2025 at 09:20:23 PM) [2025:RJ-JD:11223] (15 of 24) [CW-13740/2024] not below the rank of State level services or authority and after affording the member concerned an opportunity of hearing. 30.2. Further, Section 39 (6) is a non-obstante clause having overriding effect over the provisions contained preceding to it in Section 39 and provides that the State Government may place under suspension a member of municipality, against whom proceedings have commenced under Section 39, until the conclusion of such inquiry and passing of the final order. 30.3. It is important to note here that the phrase 'proceeding have commenced' as used under Section 39 (6) of the Act has been interpreted by a coordinate bench of this court in Nirmal Kumar Pitaliya (Supra), wherein it has been held that the proceedings stand commenced as soon as the State chooses to take action against an elected representative with or without simultaneously referring the matter to the competent authority for inquiry in terms of proviso to sub-section (1). The relevant paragraph of the aforesaid judgment is reproduced as under:
"51. But then, sub-section (6) of Section 39 of the Act of 2009, does not make any reference of any sort of inquiry, preliminary or judicial. The provision simply mentions that in case proceedings have been commenced under this Section, a member can be placed under suspension. This Court is firmly of the view that the expression "proceedings have been commenced" coupled with the expression "under this Section" is wide enough to include within its fold not only the issuance of notice for preliminary inquiry and service of chargesheet, but even the situation and cases, when the State Government decides to get an inquiry conducted through any authorized officer. The moment, the State chooses to take action against an elected representative with or without simultaneously referring the matter to the competent authority for inquiry in terms of proviso to sub-section (1), the proceedings stand commenced."
31. In Jan Mohd. V. State of Rajasthan and Ors.
MANU/RH/0014/1993, the Hon'ble division bench of this court, (Downloaded on 19/03/2025 at 09:20:23 PM) [2025:RJ-JD:11223] (16 of 24) [CW-13740/2024] while dealing with Section 63 of the Rajasthan Municipalities Act, 1959 which pertained to 'Removal of a Member', has held that where the State Government after objective satisfaction of the facts has suspended a member the court should not super-impose its own discretion to that order of suspension however, the court can examine whether such satisfaction has been arrived at objectively or arbitrarily. The Hon'ble Division Bench has also held that the suspension of a Chairman or member of a Municipal Board, pending enquiry, is an interim measure and as such does not result in civil or evil consequences neither it is penal in character however, a Chairman or Member being holder of elective public posts cannot be equated with Government Servants and therefore, before such elected representatives are suspended, the State Government must have sufficient reasons to do so and such suspension should not be arbitrary or brought about for political motives. The relevant part of the aforesaid judgment is reproduced as under:
"52. Now, it takes us to the consideration of the facts of each case. It is trite law that whether particular grounds exist for the suspension of a person or not depends upon the subjective satisfaction of the State Govt. and the Court cannot substitute its own wisdom for that order. In this respect, Mr. L.S. Udawat, the learned Addl. Advocate General has drawn our attention to a decision of this Court in State of Tamil Nadu v. P. M. Belliappa 1985 LIC 51, wherein a Division Bench of the Madras High Court has held :
"that when matter of suspension is left to the objective satisfaction of the Govt., the normal rule is that it is not necessarily justiciable before the High Court and the Court cannot look into the question as to whether the materials are adequate or inadequate from its point of view. But, the factum of satisfaction can always be questioned before the Court and the party challenging the order of suspension can always show before the Court that the professed satisfaction is no satisfaction at all either because it was formed on extraneous or irrelevant circumstances or that there was a total lock of application of mind to the question as to whether it is necessary (Downloaded on 19/03/2025 at 09:20:23 PM) [2025:RJ-JD:11223] (17 of 24) [CW-13740/2024] or desirable to suspend the Officer. The facts and circumstances to be considered must be those which existed on the date of the conclusion of the opinion or arriving at the satisfaction and actually weighed with the authority while passing the impugned order and facts which have come to transpire subsequently or which have been subsequently unearthed as existing even at the time of the conclusion or formation of opinion, though not considered and taken into account, cannot at all be relied on to support the impugned order. While the Court can examine as to whether the opinion or satisfaction was formed at all, Court cannot substitute its own satisfaction for that of the authority. Though the materials placed may not satisfy the Court, the task of the Court is only limited to an investigation as to whether there was any foundation of fact at all or whether irrelevant and extraneous circumstances have weighed with the authority while passing the impugned order. The fact that different formation of opinion or satisfaction is possible for the Court on the very same facts and circumstances is not a ground to quash the order in question. May be, the reason, given are in general terms. Yet the Court should not exclude reasons which may fairly fall within them, allowance being made for difficulties in expression."
It is, therefore, clear that so far as the facts are concerned, objective satisfaction of the State will have to be taken in to consideration and the Court cannot super-impose its discretion. However, it should always be examined whether the satisfaction has been arrived at objectively or arbitrarily. XXXX
64. In view of the aforesaid discussion, we are firmly of the view that the proceedings against a Chairman or Member of the Municipal Board commence when the preliminary enquiry report submitted to the Government is considered by the Government and the Government applies its mind to it and comes to the conclusion that a further probe in the matter is essential. For the removal of the holder of an elected public office that is Chairman or Member of the Municipal Board, if the Govt. decides to issue a notice to the incumbent under Section 63(2) of the Act to the delinquent Chairman or the Member of the Municipal Board to show cause why definite charges be not framed against him and be referred to a Judicial Officer, that is the stage where the proceedings start against the Chairman or the Member of the Municipal Board and the State Govt. has power to suspend the Chairman or a member of a Municipal Board simultaneously when it decides to issue him a notice of show cause under Section 63(2) of the Rajasthan Municipalities Act. The suspension of a Chairman or a Member of a Municipal Board pending enquiry being an interim measure the suspension does not result in civil or evil consequences and it is not penal in character. Enough safeguards have been provided in the Section so that no arbitrary, capricious or mala fide suspension may take place. However, we will like to add a word of caution that the holders of these elective public posts cannot (Downloaded on 19/03/2025 at 09:20:23 PM) [2025:RJ-JD:11223] (18 of 24) [CW-13740/2024] be equated with Govt. servants and, therefore, before a holder of an elected post is suspended, the Government must have sufficient reasons to do so. Care should be taken that such suspensions should not be arbitrary and the suspensions of such elected representatives should not be brought about for political motives or consideration."
32. Further, in Pradeep Hinger v. State of Rajasthan and Ors. MANU/RH/0600/2007, a coordinate bench of this court, while dealing with suspension of a Chairman under Section 63 (4) of the Rajasthan Municipalities Act, 1959, has held that although the suspension is not punishment but the consequence of suspension of an elected member during enquiry cannot be taken in light manner as that is against the democratic governance policy established by the Constitution of India, thus, it must come out from the record that the presence of such suspended member will affect the enquiry or will prejudice the enquiry. The relevant part of the aforesaid judgment is reproduced as under:
"34. Therefore, until a persons is removed from office, he is entitled to continue to act and exercise all powers and perform all duties of a member. The exception to it has been given under Sub-section (4) of Section 63 of the Act of 1959. The petitioner, after election as Member of the council and Chairman of the Municipal Council, is elected for a term and that he acquires right to continue and exercise all powers and perform all duties as Member/Chairman, still proviso has been appended under Sub- section (1) of Section 63 of the Act of 1959. Exception to it is because of Sub-section (4) of Section 63 of the Rajasthan Municipalities Act, 1959. Because of this provision only, the elected member, before he is removed, cannot exercise his right as of Member/Chairman. The removal dis-entitles the elected Member from exercising his said right permanently and for ever, whereas suspension makes him dis-entitles such person from exercising his rights as such as elected Member or as Chairman as the case may be till his suspension is revoked or he is exonerated. It is true that the suspension is not punishment but the consequence of suspension of an elected Member during enquiry, also cannot be taken either in the light manner or in routine manner as that is against the democratic governance policy established by the Constitution of India which gives status and recognition of elected member who are elected by the majority of votes of public. This proposition that the suspension order cannot be passed lightly or in routine manner or in mere consequence of (Downloaded on 19/03/2025 at 09:20:23 PM) [2025:RJ-JD:11223] (19 of 24) [CW-13740/2024] State Government's decision to hold enquiry under Section 63(2) has its own purpose. Therefore, it must come out from the record that the presence of the said suspended Member will affect the enquiry or will prejudice the enquiry, as held in the judgments referred above."
33. Thus, the principles that can be culled out from the afore- cited provisions and authorities are that:
(a) The State Government under Section 39 (6) of the Act has power to place under suspension a member of Municipal Board against whom proceedings have been commenced until the conclusion of inquiry and passing of final order;
(b) Although suspension being interim measure is neither penal nor any civil or evil consequences follow but a Chairman or member, being a democratically elected representative, cannot be suspended in a routine manner or light manner, hence the State Government must have sufficient reasons for doing so and it must come out from the record that the suspended member will affect the enquiry or will prejudice it;
(C) Where the State Government after objective satisfaction of the facts has suspended a member, the court should not super-
impose its own discretion to that order of suspension however, the court can examine whether such satisfaction has been arrived at objectively or arbitrarily.
34. Before adverting to factual aspects of the case it is worthwhile to mention that as far as present writ petition is concerned this court is not touching upon the merits of the charges levelled against the petitioner rather this court is concerned with the question whether there were sufficient reasons for the State Government to place the petitioner under suspension and whether such suspension was necessary so as to prevent the (Downloaded on 19/03/2025 at 09:20:23 PM) [2025:RJ-JD:11223] (20 of 24) [CW-13740/2024] petitioner from affecting the enquiry or causing prejudice to such enquiry.
35. At the outset it is observed that the interim order dated 26.02.2024 (Annex.8) was passed by this court in S.B.CWP No.2420/2024 in the peculiar facts and circumstances of that case only and the same was not intended to restrain the respondents from placing the petitioner under suspension even if some different cause of action arose, thus, the contention of the counsel for the petitioner that the suspension order dated 13.08.2024 (Annex.15) has been passed while ignoring the interim order dated 26.02.2024 (Annex.8) does not have any force as the suspension order dated 13.08.2024 (Annex.8) has been passed by the respondent on a different set of allegations as levelled in complaint dated 08.03.2024 (Annex.10). Further, the contention of the petitioner that the suspension order dated 13.08.2024 (Annex.15) has been passed on the instance of the Hon'ble Minister is not sustainable as upon perusal of note sheet dated 05.02.2024 (Annex.2) it is clear that the said enquiry therein against the petitioner was initiated on the allegations that she has concealed facts in declaration form submitted by her to the returning officer whereas the suspension order (Annex.15) has been passed in pursuance to different set of allegation as levelled in the complaint dated 08.03.2024 (Annex.10).
36. The perusal of enquiry report (Annex.R/1) reveals that the enquiry officer has given a categorical finding that as per the map of the approved scheme, the Plot no.186, for which patta bearing dispatch no.3270 (Annex.14 Colly.) has been issued, is situated in Khasra No.41/1 and not in Khasra No.40 hence, the said patta (Downloaded on 19/03/2025 at 09:20:23 PM) [2025:RJ-JD:11223] (21 of 24) [CW-13740/2024] (Annex.14 Colly.) has been issued by the petitioner to her husband without exercising due diligence. It has also been observed in the enquiry report (Annex.R/1) that no corresponding entry of dispatch no.3270, as marked on the patta in question (Annex.14 Colly.), has been made in the dispatch register. Further, it has also been observed in the enquiry report (Annex.R/1) that 185 files for issuance of patta has been found from the office of the petitioner which are pending for the signature of the petitioner for more than one year. It has also been observed in the enquiry report that as per the report of the in-charge of Land Branch that the original file for issuance of patta in question (Annex.14 Colly.) is in possession of the petitioner. The relevant part of the enquiry report (Annex.R/1) is reproduced as under:
"f"kdk;r esa of.kZr rF;ksa ij vf/k"kk'kh vf/kdkjh] uxjikfydk uksgj }kjk i=koyh esa ekStwn fjiksVZ esa voxr djk;k fd Hkwfe "kk[kk esa dqN i=kofy;ksa dh vuqiyC/krk ckcr~ izFke lwpuk fjiksVZ 63@2024 iqfyl Fkkuk uksgj esa tSjs vuqla/kku gS rFkk lacf/kr dkfeZd Jh vfer dqekj }kjk iV~Vk i=koyh vU; i=kofy;ksa ds lkFk v/;{k egksn;k }kjk vius ?kj eaxok;h xbZ tks vkfnukad okil ugha ykSVk;h xbZ gS rFkk mifuns"kd ¼{ks=h;½] chdkusj dh tkap ds nkSjku vkseizdk"k iq= jkes"ojyky ds uke ls iathd`r iV~Vs ls lacf/kr i=koyh dk;kZy; esa iwoZ esa dk;Zjr lsokfuo`Rr dkfeZd jes"k dqekj "kekZ ls izkIr dj QksVksizfr yh xbZ] Hkwfe "kk[kk izHkkjh dh fjiksVZ ds vuqlkj lacf/kr ewy iV~Vk i=koyh v/;{k egksn;k ds ikl gh gSA blds vfrfjDr pd ljnkjiqjk ds [kljk la[;k 38] 39] 40] 41@1] 41@4 dk ofj'B uxj fu;kstd chdkusj }kjk la;qDr ys vkmV~ Iyku vuqeksnu dj [kljksa dh lhek dks vyx&vyx n"kkZ;s x;s gSA eqrkfcd dfu'B vfHk;ark ds HkkSfrd lR;kiu iV~Vk la[;k 3270 ls lacf/kr Hkw[k.M la[;k 186 vuqeksfnr Iyku ds [kljk ua- 40 esa ekStwn ugha gS lkFk gh iV~Vs ij vafdr fMLiSp la[;k 3270 fMLiSp jftLVMZ esa vafdr ugha gksdj [kkyh gS] ftls [kkyh ik;s tkus ij fujLr Hkh fd;k gS] bl izdkj vf/k"kk'kh vf/kdkjh us iV~Vs ij lansg izdV fd;k gSA vf/k"kk'kh vf/kdkjh us viuh fjiksVZ esa fofHkUu&fofHkUu i=koyh;ksa esa iV~Vksa ds forj.k ?kj ls djrs gq, vius ikl gh j[kh gS ftUgsa Hkwfe "kk[kk esa okil miyC/k ugha djok;h x;h gS rFkk v/;{k egksn;k ds d{k ls 185 i=kofy;ka iV~Vksa ij gLrk{kj gsrq ik;h xbZ tks ,d o'kZ ls T;knk le; ls gLrk{kj ds fy, fopkjk/khu FkhA i=koyh ij miyC/k eksfudk [kVksfr;k] v/;{k }kjk izLrqr tokc esa mijksDr vkjksiksa dk [k.Mu fd;k gS ,oa voxr djk;k gS fd muds ikl dksbZ (Downloaded on 19/03/2025 at 09:20:23 PM) [2025:RJ-JD:11223] (22 of 24) [CW-13740/2024] i=koyh ugha gS rFkk muds }kjk lHkh dk;Z fu;ekuqlkj fd;s gS] uksfVl dh dk;Zokgh fujLr QjekosaA i=koyh esa mifuns"kd ¼{ks=h;½ chdkusj }kjk Hkh i=kofy;ksa ds fjdksMZ dk la/kkj.k ugha gksuk voxr djk;k gSA izdj.k ds laca/k esa ofj'B uxj fu;kstd] funs"kky; dh fVIi.kh yh xbZ] i=koyh esa layXu vuqeksfnr ;kstuk ekufp= vuqlkj [kljk la[;k 38] 39] 40] 41@1 o 41@4 xzke pd ljnkjiqjk dh Hkwfe dk ,dtkbZ ih-Vh- losZ djok lfEefyr ;kstuk rS;kj dj fnukad 11-07-2022 dks ys&vkmV vuqeksfnr fd;k x;k gSA mDr ;kstuk dk uke Þrqylh dkWyksuh] ";ke ckck dkWyksuh] fj)h&fl)h dkWyksuh] f"kok dkWyksuh ¼ukFkhnsoh½ß vafdr gSA tkap gsrq izLrqr iz"uxr iV~Vk foys[k esa Hkw[k.M la[;k 186] {ks=Qy 39* x 84*= 364 oxZxt ,oa ;kstuk dk uke pd ljnkjiqjk [kljk ua- 40 vafdr gSA fdUrq ;kstuk ekufp= vuqlkj [kljk la[;k 40 esa Hkw[k.M la[;k 186 vafdr ugha gSA mDr ;kstuk ekufp= esa nks LFkku ij Hkw[k.M la[;k 186 vafdr gS] ftuesa ls ,d Hkw[k.M {ks=Qy 156-30 oxZxt ";ke ckck dkWyksuh esa [kljk la[;k 39 ij fLFkr gS ,oa ,d Hkw[k.M {ks=Qy 461-48 oxZxt fj)h&fl)h dkWyksuh esa [kljk la[;k 41@1 ij fLFkr gSA tkap i=koyh esa iz"uxr Hkw[k.M+ dk iV~Vk foys[k tkjh fd;s tkus ls lacf/kr uksV"khV] ekSdk fjiksVZ vkfn layXu ugha gS] layXu lkbZV Iyku vuqlkj lM+d ekxkZf/kdkj dksVs tkus] ekSdk fLFkfr ds ifjis{k esa fj)h&fl)h dkWyksuh esa [kljk la[;k 41@1 ij fLFkr Hkw[k.M iz"urxr Hkw[k.M+ izrhr gksrk gSA mDr Hkw[k.M+ ;kstuk ekufp= esa vuqeksfnr gS o [kljk la[;k 40 esa fLFkr uk gksdj [kljk ua- 41@1 fLFkr gSA vr% fj)h&fl)h dkWyksuh esa fLFkr Hkw-la- 186 ;kstuk ekufp= esa vuqeksfnr gksus ds dkj.k mDr Hkw[k.M+ dk iV~Vk foys[k rduhdh n`f'V ls fu;ekuqlkj LokfeRo] okn&fookn vkfn dh tkap fd;k tkdj tkjh fd;k tkuk pkfg,] iV~Vk foys[k esa ;kstuk dk uke fj)h&fl)h dkWyksuh vafdr fd;k tkuk pkfg,A izdj.k ds foospu ls Li'V gS fd iz"uxr Hkw[k.M iV~Vk tkjh djus esa orZeku v/;{kk eksfudk [kVksfr;k us i;kZIr ,gfr;kr ugha cjrh gS] blds vfrfjDr Lo;a ds ifr ds uke ls tkjh iV~Vs dks fof/kor fMLiSp ugha djuk Hkh lansg izdV djrk gS] ckotwn i;kZIr i=kpkj 185 dks i=kofy;ksa dks vkokl ij yfEcr j[kuk vius inh; drZO;ksas dk nq:i;ksx ,oa vfu;ferrk dh Js.kh esa vkrk gSA tkap fjiksVZ izLrqr gSA"
37. Furthermore, this court finds that the State Government after taking into consideration the enquiry report (Annex.R/1) as well as the reply (Annex.13) filed by the petitioner to the show- cause notice (Annex.11) has arrived at the conclusion that prima facie it appears to be the case that the petitioner has retained the files pending for issuance of patta without any reason and charge (Downloaded on 19/03/2025 at 09:20:23 PM) [2025:RJ-JD:11223] (23 of 24) [CW-13740/2024] of corruption was levelled against the petitioner for issuing patta no.3270 (Annex.14 Colly.) in contravention of the rules. Thus, the State Government has objectively attained the satisfaction that the prima facie case appears to be made out against the petitioner under sub-clauses (i), (ii), (iii) and (vi) of Section 39 (1) (d) of the Act before placing the petitioner under suspension. Consequently, the State Government vide order dated 13.08.2024 (Annex.15) has initiated a judicial enquiry under Section 39 (3) of the Act against the petitioner and the she has been placed under suspension while invoking Section 39 (6) of the Act as there is likelihood of her affecting the judicial enquiry. As far as the likelihood of petitioner affecting the judicial enquiry is concerned, this court is of the prima facie view that the apprehension of the State Government has some substance in it as the patta no.3270 (Annex.14 Colly.) was issued to husband of the petitioner hence, she can also be considered as an interested party.
38. Further, as far as the contention of the counsel for the petitioner that the petitioner is being targeted due to political rivalry as no proceedings have been initiated against any other officer who were involved in the present controversy, is concerned the same does not have any force for the reason that the learned AAG has stated at bar that appropriate proceedings are being undertaken against other officers as well.
39. Thus, in view of the above, no interference is called for in the suspension order dated 13.08.2024 (Annex.15). Accordingly, the instant writ petition is dismissed.
40. Pending Application (s), if any, shall also stand disposed of. (Downloaded on 19/03/2025 at 09:20:23 PM)
[2025:RJ-JD:11223] (24 of 24) [CW-13740/2024]
41. It is made clear that any observation made hereinabove shall not have any bearing on the proposed judicial enquiry against the petitioner.
(DR. NUPUR BHATI),J 21-23/Ravi/-
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