Balwant vs State Of Rajasthan
2021 Latest Caselaw 9985 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Civil Writ Petition No. 7908/2021

Balwant S/o Shri Badri Prasad, Aged About 38 Years, R/o Ward No.36, Ganeshpura Bas, Bhadra, Tehsil Bhadra, District Hanumangarh.

----Petitioner Versus

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.

                                                                    ----Respondents


For Petitioner(s)          :     Mr. R.N. Mathur, Sr. Advocate assisted
                                 by Mr. R.S. Choudhary (through VC)

For Respondent(s)          :     Mr. Sunil Beniwal, AAG (through VC)

                                 Mr. P.P. Choudhary,    Sr. Advocate
                                 assisted by Mr. Moti Singh for
                                 respondent No.8 (through VC)





                                        (2 of 5)                [CW-7908/2021]


            HON'BLE MR. JUSTICE VIJAY BISHNOI

                       Judgment / Order

02/07/2021

This writ petition has been filed by the petitioner

being aggrieved with the order dated 18.06.2021

whereby, the respondent No.2 while exercising powers

under Section 39(6) of the Rajasthan Municipalities Act,

2009 (for short 'the Act of 2009') has suspended the

petitioner from the post of member of Ward No.6,

Municipal Board, Bhadra and has also suspended him

from the post of Vice Chairman (Acting Chairman),

Municipal Board, Bhadra. The principle contention raised

by the petitioner in this writ petition is that the petitioner

has been suspended from the post of Member as well as

Vice Chairman (Acting Chairman) of the Municipal Board,

Bhadra on the ground that an enquiry has been initiated

against him under Section 39(1) of the Act of 2009 on

the ground that at the time of election of petitioner on

the post of Member of Municipal Board, Bhadra, he was

disqualified for being chosen as a Member on account of

the fact that he was having additional child after the cut-

off date.

Mr. R.N. Mathur, Senior Advocate assisted by Mr. R.S.

Choudhary has argued that the alleged disqualification,

(3 of 5) [CW-7908/2021]

on the basis of which, the enquiry under Section 39 of

the Act of 2009 has been initiated against the petitioner

is certainly a pre election disqualification and for a pre

election disqualification, proceedings under Section 39 of

the Act of 2009 cannot be initiated.

Mr. Mathur has placed reliance on a Full Bench

decision of this Court rendered in Sameera Bano Vs.

State of Rajasthan & Ors., reported in 2007(2) DNJ

(Raj.) 858 and a decision of Single Bench of this Court

rendered in Julfikar Ali Bhutto Vs. State of Rajasthan

& Ors. (SBCWP No.1399/04).

Per contra, Mr. Sunil Beniwal, AAG appearing on

behalf of the State of Rajasthan other respondents has

vehemently submitted that the State Government is

empowered to commence proceedings against a member

of the Municipal Board under Section 39 of the Act of

2009 in relation to a pre election disqualification also.

Mr. Beniwal, AAG has also placed reliance on the decision

of a Division Bench of this Court rendered in Rakesh

Ghatiwal Vs. The State of Raj. & Anr. 2001(4) WLC

(Raj.) 731 and a Single Bench of this Court (Jaipur

Bench) rendered in Prabhu Dayal Saini Vs. State of

Rajasthan & Ors., reported in 2002(2) WLC (Raj.)

427.

(4 of 5) [CW-7908/2021]

Learned counsel Mr. Moti Singh appearing for the

respondent No.8 has submitted that in view of the

decisions rendered in the cases Prabhu Dayal Saini

and Rakesh Ghatiwal (supra), the State Government

is fully competent to commence proceedings against a

member of the Municipal Board in relation to pre election

disqualification and after commencement of the said

proceedings, a member can very well be suspended by

the authority concerned while exercising powers under

Section 39(6) of the Act of 2009 and, as such, the State

Government has not committed any illegality in passing

the impugned order dated 18.6.2021.

Yesterday, Mr. P.P. Choudhary, Senior Advocate

appearing for the respondent No.8 has also argued that

as per the provisions of Article 243ZG, election of a

member of a Municipal Board can also be questioned by

way of initiation of enquiry and not only by way of

election petition in relation to a pre election

disqualification.

Having heard learned counsel for the parties, this

Court is of the opinion that the matter requires

consideration.

Admit. Notices need not be issued as parties are

represented through their respective counsel.

(5 of 5) [CW-7908/2021]

In the meantime, effect and operation of the order

dated 18.6.2021 (Annex./11) passed by the respondent

No.2 shall remain stayed.

Let this matter be listed for final disposal in the

fourth week of August, 2021.

(VIJAY BISHNOI),J

112-msrathore/-

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