Rajasthan High Court
The State Of Rajasthan vs Kamal Pathak S/O Shri Bheru ... on 22 October, 2021
Bench: Prakash Gupta, Vinod Kumar Bharwani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 778/2021
1. The State Of Rajasthan, Through Its Secretary, Local Self
Government Department, Secretariat, Jaipur, Raj.
2. The Director Local Self Government Department,
Directorate Local Body, Near Civil Line Phatak, Jaipur, Raj.
3. The Assistant Director (Vigilance), Local Self Government
Department, Directorate Local Body, Near Civil Line
Phatak, Jaipur, Raj.
4. The Deputy Director (Regional), Local Self Government
Department, Ajmer, Raj.
5. The Executive Officer, Nagar Palika, The Executive Officer,
Nagar Palika
----Appellants
Versus
Kamal Pathak S/o Shri Bheru Narayan, Aged About 53 Years, R/o
Near Brahm Chowak, Badi Basti, Puskar, Dist.- Ajmer, Raj.
----Respondent
For Appellant(s) : Mr. Anil Mehta, AAG with Mr.
Yashodhar Pandey, Advocate
Ms. Archana, Advocate and Mr. Mehul
Harkawat, Advocate
For Respondent(s) : Mr. Naveen Dhuwan, Advocate
For applicant Mr. B.L. Sharma, Advocate and Mr.
N.N. Sharma, Advocate for the
applicant in S.B. Civil Writ Petition No.
14807/2020
HON'BLE MR. JUSTICE PRAKASH GUPTA
HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI
Judgment
Date of Judgment :: 22/10/2021
This appeal has been filed by the appellants-
respondents (for short, 'the appellants') against the order dated
16.12.2020 passed by the learned Single Judge, whereby ex-parte
(2 of 4) [SAW-778/2021]
interim order has been passed in favour of the respondent-
petitioner (for short, 'the respondent') and the order dated
9.4.2021, whereby the application filed by the appellants to vacate
the interim order dated 16.12.2020 has been dismissed.
Facts of the case are that the respondent was elected
as a Chairperson of Nagar Palika, Pushkar. On the basis of a
complaint submitted against him by the complainant, a factual
report was sought by the appellants from Executive Officer, Nagar
Palika, Pushkar. The Executive Officer after preparing the report,
sent the same to the appellants. Subsequently a second complaint
was submitted against the respondent by the same complainant to
the Minister concerned, on the basis of which a report was called
from the Executing Officer. The Executive Officer conducted a
summary enquiry, prepared the report and sent the same to the
appellants. Thereafter the appellants constituted a Three
Members' Enquiry Committee, which called for a detailed report
from the Executive Officer. The Executive Officer again conducted
the summary enquiry and submitted his report to the Committee.
Subsequently, the Deputy Director vide his letter dated 8.10.2020
sought a factual report from the Executive Officer, Nagar Palika,
Pushkar. The Executive Officer conducted the enquiry and
submitted a report. Despite that the appellants served a notice
dated 2.12.2020 to the respondent, which was challenged by the
respondent by filing S.B. Civil Writ Petition No. 14807/2020 before
the learned Single Judge of this Court. After hearing the
arguments, the learned Single Judge of this Court vide his order
dated 16.12.2020 while issuing notice to the respondents, stayed
effect and operation of the impugned notice dated 2.12.2020.
Thereafter the appellants put in appearance and filed an
(3 of 4) [SAW-778/2021]
application under Article 226 (3) of the Constitution of India for
vacating the interim order, which came to be dismissed vide order
dated 9.4.2021. Hence, this appeal.
Learned counsel for the appellants submits that under
Section 39(1) of the Rajasthan Municipality Act, 2009 (for short,
'the Act of 2009'), a preliminary enquiry was being conducted for
the alleged misconduct of the respondent and therefore, a notice
was issued to him and his explanation was sought, but without
any reason, the show cause notice was stayed by the learned
Single Judge, contrary to the Division Bench Judgment of this
Court in the case of Smt. Somya Gurjar Versus State of Rajasthan
& Ors. (D.B. Civil Writ Petition No. 6485/2021). He further submits
that after conducting preliminary enquiry, a Judicial Enquiry was to
be conducted by a Judicial Officer of the rank of District Judge
under Section 39 (4) of the Act of 2009. However, the learned
Single Judge without considering the aforesaid aspect of the
matter, stayed the show cause notice ex-parte and arbitrarily
dismissed the application under Article 226(3) of the Constitution
of India. On this count, the impugned orders are liable to be
quashed and set-aside.
On the other hand, learned counsel for the respondent
submits that thrice enquiry was conducted by the Executive
Officer, but nothing was found proved against the respondent. The
respondent is the member of opposition party and with malafide
intention, the impugned notice has been issued against him. He
further submits that the writ petition was directed to be listed for
final disposal at admission stage on 13.5.2021, but subsequently
the matter was adjourned and the next date in the matter is
(4 of 4) [SAW-778/2021]
26.10.2021. The impugned orders are just and proper and no
interference therewith is required by this Court.
Heard. Considered.
Taking into consideration the facts and circumstances of
the case and more particularly in view of the fact that this appeal
has been filed against the interim orders and the writ petition is
pending for final disposal before the learned Single Judge and the
next date in the matter is 26.10.2021, we are not inclined to
interfere in the impugned orders passed by the learned Single
Judge. However, we request the learned Single Judge to decide
the writ petition finally within two weeks from today.
The special appeal stands disposed of accordingly.
Consequent upon the disposal of the appeal, the stay
application also stands disposed of accordingly.
(VINOD KUMAR BHARWANI),J (PRAKASH GUPTA),J
DK/47
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