HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR (1) D. B. Civil Special Appeal (Writ) No. 388/2021 In S. B. Civil Writ Petition No. 7908/2021 APPELLANT:-
Baitul Bano W/o Late Shri Daud Qureshi, aged about 55 years, R/o. Ward No. 32, Bhadra, Tehsil Bhadra, District Hanumangarh.
Versus RESPONDENTS:-
1. State Of Rajasthan, through Secretary, Department of Local Self, Government of Rajasthan, Secretariat, Jaipur.
2. The Director-cum-Special Secretary, Department of Local Bodies, Rajasthan, Jaipur.
3. Asstt. Director (Vigilance), Department of Local Self, Rajasthan, Jaipur.
4. District Collector, Hanumangarh.
5. Chief Executive Officer, Zila Parishad, Hanumangarh.
6. Sub Divisional Officer, Bhadra, Zila Parishad Hanumangarh.
7. Executive Officer, Municipal Board, Bhadra, District Hanumangarh.
8. Balwan Poonia S/o Shri Chhotu Ram Poonia, R/o.
Malkhera, Tehsil Bhadra, District Hanumangarh, at present MLA, Bhadra, District Hanumangarh.
9. Balwant S/o Shri Badri Prasad, aged about 38 years, R/o.
Ward No. 36, Ganeshpura Bas, Bhadra, Tehsil Bhadra, District Hanumangarh.
Connected With (2) D. B. Civil Special Appeal (Writ) No. 393/2021 In S. B. Civil Writ Petition No. 7908/2021 APPELLANT:-
Balwan Poonia S/o Shri Chhotu Ram Poonia, aged about 45 years, R/o. Malkhera, Tehsil Bhadra, District Hanumangarh, at present MLA, Bhadra, District Hanumangarh. (Downloaded on 30/07/2021 at 08:44:48 PM)
(2 of 7) [SAW-388/2021]
Versus
RESPONDENTS:-
1. State of Rajasthan, Through Secretary, Department of Local Self, Government of Rajasthan, Secretariat, Jaipur.
2. The Director-cum-Special Secretary, Department of Local Bodies, Rajasthan, Jaipur.
3. Asstt. Director (Vigilance), Department of Local Self, Rajasthan, Jaipur.
4. District Collector, Hanumangarh.
5. Chief Executive Officer, Zila Parishad, Hanumangarh.
6. Sub Divisional Officer, Bhadra, Zila Parishad, Hanumangarh.
7. Executive Officer, Municipal Board, Bhadra, District Hanumangarh.
8. Balwant S/o Shri Badri Prasad, aged about 38 Years, R/o.
Ward No. 36, Ganeshpura Bas, Bhadra, Tehsil Bhadra, District Hanumangarh.
(3) D. B. Civil Special Appeal (Writ) No. 394/2021 In S. B. Civil Writ Petition No. 7908/2021 APPELLANTS:
1. State of Rajasthan, through Secretary, Department of Local Self, Government of Rajasthan, Secretariat, Jaipur.
2. The Director-cum-Special Secretary, Department of Local Bodies, Rajasthan, Jaipur.
3. Asstt. Director (Vigilance), Department of Local Self, Rajasthan, Jaipur.
Versus RESPONDENT:
1. Balwant S/o Shri Badri Prasad, aged about 38 Years, R/o Ward No. 36, Ganeshpura Bas, Bhadra, Tehsil Bhadra, District Hanumangarh.
PERFORMA PARTY:
2. District Collector, Hanumangarh.
(Downloaded on 30/07/2021 at 08:44:48 PM)
(3 of 7) [SAW-388/2021]
3. Chief Executive Officer, Zila Parishad, Hanumangarh.
4. Sub Divisional Officer, Bhadra, Zila Parishad, Hanumangarh.
5. Executive Officer, Municipal Board, Bhadra, District Hanumangarh.
6. Balwan Poonia S/o Shri Chhotu Ram Poonia, R/o Malkhera, Tehsil Bhadra, District Hanumangarh, at present MLA, Bhadra, District Hanumangarh. For Appellants : Mr. Moti Singh Advocate (In Appeal No. 388/2021 & 393/2021) For Appellants-State : Mr. Sunil Beniwal Additional Advocate General (In Appeal No. 394/2021) For Respondent- : Mr. R. N. Mathur Senior Advocate Balwant Through Video Conferencing assisted by Mr. R.S. Choudhary Advocate with Mr. S.S. Gaur Advocate.
HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment 28/07/2021 Vide this judgment, abovementioned three appeals would be disposed of as order under challenge is common in all the appeals.
Learned Additional Advocate General as well as learned counsel for private appellants have submitted that the learned Single Judge has erred in granting interim relief to respondent- Balwant. In-fact, the only remedy available to respondent- Balwant was to file an election petition.
Mr. Moti Singh, learned counsel for the private appellants has further submitted that the validity of Section 39(1)
(d)(ii) and Section 39(1)(d)(iii) of the Rajasthan Municipalities Act, 2009 (hereinafter referred to as 'the Act') has been upheld by (Downloaded on 30/07/2021 at 08:44:48 PM) (4 of 7) [SAW-388/2021] Division Bench of this Court at Jaipur Bench in Smt. Somya Gurjar Vs. State of Rajasthan & Others (D. B. Civil Writ Petition No. 6485/2021 decided on 28.06.2021).
Mr. R. N. Mathur, Learned Senior Counsel appearing on behalf of respondent-Balwant has opposed the appeals and has submitted that the order under challenge was liable to be upheld. Election vis-à-vis the vacant seat has already taken place. The issues involved in the writ petition filed by respondent-Balwant are yet to be decided by the learned Single Judge.
Respondent-Balwant has filed the writ petition with the following prayer:
"It is, therefore, most humbly and respectfully prayed that this writ petition may kindly be allowed and by an appropriate writ, order or direction:
(i) The impugned order dated 18.06.2021 (Ann.11) passed by the respondent no. 2 may kindly be declared highly illegal, arbitrary, unjust, without justification and same may kindly be quashed and set aside.
(ii) impugned notice dated 10.06.2021 (Ann.5), 16.06.2021 (Ann.8) and inquiry reports as well as inquiry conducted by the Election Registration Officer (SDM), Bhadra and Chief Executive Officer, Zila Parishad, Hanumangarh dated 18.06.2021 may kindly be declared highly illegal, arbitrary, unjust and same may kindly be quashed and set aside.
(iii) The inquiry reports submitted by the Election Registration Officer (SDM), Bhadra and Chief Executive Officer, Zila Parishad, Hanumangarh in pursuance of the notices dated 10.06.2021 and 16.06.2021 may kindly be declared highly arbitrary, unjust and same may kindly be quashed and set aside.
(iv) The respondents may kindly be restrained from interfering in the functioning of the petitioner on the post of Chairman, Municipal Board, Bhadra.
(v) Any other appropriate writ, order or direction which this Hon'ble Court deems just and proper may kindly be passed in favour of the petitioner."
Case of respondent-Balwant, in brief, was that election of Municipal Board, Bhadra was completed in January, 2020. (Downloaded on 30/07/2021 at 08:44:48 PM)
(5 of 7) [SAW-388/2021] Respondent-Balwant was elected as a Counsellor from Ward No. 6. Haji Daud Khan Qureshi was elected as Counsellor from Ward No. 12 and was thereafter elected as Chairman, Municipal Board, Bhadra. Respondent-Balwant was elected as Vice Chairman, Municipal Board, Bhadra. Haji Daud Khan Qureshi died on 20.04.2021 and as a result, post of Chairman fell vacant. As per provisions of the Act, Vice Chairman was entitled to assume the charge of the post of Chairman. Since, the charge of the post of Chairman was not handed over to respondent-Balwant, he filed S. B. Civil Writ Petition No. 7287/2021 before this Court and an interim order dated 25.05.2021 was passed in favour of respondent-Balwant. Respondents in the said writ petition were directed to issue requisite order for handing over the charge to respondent-Balwant and the department was also restrained from handing over the charge to any other person except respondent- Balwant. Despite the said interim order, respondent-Balwant was not handed over the charge of the post of Chairman. The case was adjourned to 27.05.2021 and thereafter, was adjourned to 03.06.2021 and then, it was adjourned to 04.06.2021. Thereafter, the case was again adjourned to 09.06.2021.
On 31.05.2021, respondent-Balwant sent a legal notice to the respondents in the writ petition with regard to commission of contempt of court's order alleging that they had committed willful disobedience of the order passed by this Court. Thereafter, the State passed an order dated 04.06.2021 for handing over the charge of the post of Chairman to respondent-Balwant. Respondent-Balwant assumed the charge as Chairman on 07.06.2021. However, Balwan Poonia, who was impleaded as Respondent No. 8 in the writ petition (appellant in Appeal No. (Downloaded on 30/07/2021 at 08:44:48 PM) (6 of 7) [SAW-388/2021] 393/2021) became annoyed with respondent-Balwant and on his instructions, FIR No. 186/2021 for the offence under Sections 420, 467, 468, 471, 120-B of Indian Penal Code, 1860 was lodged on 09.06.2021 at Police Station Bhadra, District Hanumangarh alleging that respondent-Balwant was having three children after cut-off date, i.e., 27.11.1995.
It was the case of respondent-Balwant in the writ petition that pre-election disqualification could not be adjudicated by holding an enquiry under Section 39 of the Act. It could only be adjudicated by filing an election petition under Section 31 of the Act. Therefore, enquiry conducted by the State on the basis of pre-election disqualification was illegal. So far as Divya is concerned, she was daughter of Mahesh Kumar and Suman. The complainant had wrongly alleged that Divya was daughter of respondent-Balwant.
Learned Single Judge, while admitting the writ petition filed by respondent-Balwant, has noticed that the issue raised in the writ petition as to whether pre-election disqualification can be enquired while exercising powers under Section 39(6) of the Act required consideration.
The question as to whether the disqualification alleged against respondent-Balwant is to be treated as pre-election disqualification and whether a Member can be suspended by authority concerned while exercising powers under Section 39(6) of the Act would be decided by the learned Single Judge at the time of decision of the main petition. Appellants would be at liberty to take up all the pleas available to them before the learned Single Judge at the time of the hearing of the petition. (Downloaded on 30/07/2021 at 08:44:48 PM)
(7 of 7) [SAW-388/2021] It is also the case of respondent-Balwant that FIR was lodged against him during pendency of the writ petition filed by him before this Court seeking a direction that charge of the post of Chairman be handed over to him.
In the facts and circumstances of the present case, learned Single Judge rightly came to the conclusion that the issues involved in the writ petition require consideration. Admittedly, election to the post of Counsellor on account of vacancy created due to death of Haji Daud Khan Qureshi has already been conducted and now, the Chairman is to be elected on 05.08.2021. So far as respondent-Balwant is concerned, he has been given charge of the post of Chairman till the election for the post of Chairman is held.
After considering totality of circumstances, we are of the opinion that learned Single Judge has not committed any error while staying the effect and operation of order dated 18.06.2021 (Annexure-11 to the writ petition). Learned Single Judge has already ordered that the writ petition be listed for final disposal in the fourth week of August, 2021.
No ground for interference is made out. Dismissed.
(VINIT KUMAR MATHUR),J (SABINA),J
MANOJ NARWANI/9-11
(Downloaded on 30/07/2021 at 08:44:48 PM)
Powered by TCPDF (www.tcpdf.org)