Rajasthan High Court
Smt. Somya Gurjar Wife Of Shri ... vs State Of Rajasthan on 26 March, 2021
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
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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
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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
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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
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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
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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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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.
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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
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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.
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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
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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
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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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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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