Rajasthan High Court - Jodhpur
Monzoor Ali vs State Of Rajasthan on 21 January, 2022
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 17283/2021
Manzoor Ali S/o Late Abdul Majeed, Aged About 41 Years, Plot
No. 34, Behind Naiyon Ki Bagechi, Jodhpur.
----Petitioner
Versus
1. State Of Rajasthan, Through The Director Cum Special
Secretary, Directorate, Local Self Government
Department, Jaipur.
2. The District Collector, Jodhpur.
3. Municipal Corporation (South), Jodhpur. Through Its
Commissioner.
4. The Deputy Commissioner-I, Municipal Corporation
(South), Jodhpur.
----Respondents
For Petitioner(s) : Mr. C. S. Kotwani
For Respondent(s) : Mr. Sunil Beniwal, AAG assisted by
Mr. Kunal Upadhyay
JUSTICE DINESH MEHTA
Order
21/01/2022
1. Petitioner, an elected member of ward No.24 of Jodhpur
Municipal Corporation, has invoked the writ jurisdiction of this
Court assailing the order dated 08.12.2021, whereby the Director
cum Special Secretary, Directorate, Local Self Government -
respondent No.1 has sought petitioner's explanation in terms of
Section 39(3) of the Rajasthan Municipalities Act, 2009
(hereinafter referred to as the 'Act of 2009') as to why judicial
enquiry not be conducted against him.
(2 of 8) [CW-17283/2021]
2. Simultaneously with issuance of show cause notice aforesaid,
the petitioner has also been placed under suspension.
3. Mr. Kotwani, learned counsel for the petitioner, has
challenged the impugned order on two premises :
(i) the disqualification alleged against the petitioner (he has more
than two children) relates to pre-election disqualification and thus,
no proceedings against him can be initiated.
(ii) Preliminary enquiry which was got conducted by the
respondent and which has been the basis of issuance of the
impugned order dated 08.12.2021 has been conducted by an
incompetent authority and hence, the order is illegal.
4. In support of his first contention, it was informed by learned
counsel for the petitioner that the very same candidate has
already filed an election petition which is pending before the
competent Court on the allegation that petitioner was disqualified
for having three children.
5. In support of his second contention, learned counsel has
relied upon the judgment of Division Bench dated 12.11.2008
passed in State of Rajasthan & Anr Vs. Ashok Kumar Machi & Anr.
: DB Civil Special Appeal No.958/2008 and submitted that in
almost similar circumstances preliminary enquiry having been
conducted by a delegate of the competent authority has been
quashed.
6. Mr. Beniwal, learned Additional Advocate General, appearing
for the respondent - State on the other hand submitted that
petitioner's first contention that the purported disqualification is a
pre-election disqualification is absolutely misconceived, inasmuch
as birth of the third child has taken place after the petitioner was
elected. He argued that since giving birth to third child is a
(3 of 8) [CW-17283/2021]
disqualification under Section 24(XVII) of the Act of 2009, and
such disqualification has been acquired during his tenure as a
Member of the Board, the State Government is competent to take
action against him under the powers available to it under section
39 of the Act of 2009.
7. In relation to the second argument that was advanced by
learned counsel for the petitioner that the preliminary enquiry
which has been conducted by an incompetent authority, Mr.
Beniwal submitted that the said enquiry cannot be said to be a
preliminary enquiry. He asserted that it was only a fact finding
enquiry and once the fact that the petitioner has fathered a third
child after being elected, has come to the notice of the State, the
State has issued a notice on 08.12.2021. He added that once the
proceedings against the petitioner have commenced, the State
was justified in suspending the petitioner in terms of sub-section
(6) of section 39 of the Act of 2009.
8. It was also argued by Mr. Beniwal that maybe, the factual
enquiry has been labelled as preliminary enquiry, but it cannot be
said to be an enquiry provided under section 39(1) of the Act of
2009, inasmuch as the entire section nowhere uses the expression
'preliminary enquiry'.
9. Heard.
10. So far as the first argument of learned counsel for the
petitioner that the respondent - State cannot proceed against the
petitioner on the allegation of third child having being fathered by
him for it being pre-election disqualification is concerned, this
Court does not find any substance in the same.
11. Indisputably, the third child was born on 25.11.2020, after
the petitioner was elected as a Member of Municipal Corporation,
(4 of 8) [CW-17283/2021]
(03.11.2020), hence it cannot be said that the petitioner was
disqualified when he filled up the nomination form or even
contested the election.
12. It is the actual delivery and not the very conception of a
child, which is a disqualification. The provision under clause (XVII)
of section 24 of the Act of 2009 clearly provides that the
disqualification to be chosen as a member is, having more than
two children. If provision contained in section 39(1)(c) and
24(XVIII) of the Act of 2009 are read together as the occurrence
of birth is after the petitioner's election, it cannot be treated to be
a pre-election disqualification.
13. Adverting to the second contention, a perusal of the record
reveals that vide communication dated 15.03.2021 the State
Government had directed the District Collector, Jodhpur to conduct
an enquiry and send a report as to whether petitioner has more
than two children.
14. In furtherance of the Directorate's communication dated
08.03.2021 followed by another communication dated
15.03.2021, the Additional District Collector vide its
communication dated 08.04.2021 required the Commissioner,
Municipal Corporation (South), Jodhpur to enquire into the matter
and give his opinion.
15. The Commissioner, Municipal Corporation (South), Jodhpur,
in turn appointed one Mr. Vivek Vyas, Deputy Commissioner to be
an enquiry officer.
16. Said Mr. Vivek Vyas then issued a notice to the petitioner and
sought his explanation.
(5 of 8) [CW-17283/2021]
17. Thereafter, the Deputy Commissioner of the Municipal
Corporation sent a report on 29.07.2021, which has been placed
by the State on record as Annex-R/2.
18. A perusal of the above report dated 29.07.2021 reveals that
the Deputy Commissioner has relied upon a report given by
Sanitary Inspector may be on the basis of record, that the
petitioner gave birth of third child on 25.11.2020.
19. A reading of the impugned order reveals that the same has
been issued on the basis of a preliminary enquiry ( izkFkfed tkWap)
and the only preliminary enquiry report available on record is, the
one furnished by the Deputy Commissioner on 29.07.2021.
20. In the opinion of this Court, an enquiry in terms of first
proviso to section 39 (1) of the Act of 2009 (by whatever name
called; may be preliminary enquiry or otherwise) is required to be
conducted by an authority prescribed under the proviso i.e.
existing or retired officer not below the state service or authority
as may be directed.
21. It cannot be disputed that the Director of the Local Self
Government had issued the notice dated 08.03.2021 to the
District Collector for conducting enquiry, who in turn wrote a letter
to the Commissioner, Municipal Corporation (South) and the
directions percolated down from the Deputy Commissioner to the
level of Sanitary Inspector, who has ultimately reported that the
petitioner has three children.
22. True it is that the entire scheme of section does not use the
expression 'preliminary enquiry'; but then 'fact finding enquiry' is
also alien to section 39 of the Act of 2009. Only two types of
enquiry are envisaged under section 39, first being an enquiry
conducted in terms of first provisio to section 39(1) and the
(6 of 8) [CW-17283/2021]
second being judicial enquiry prescribed in sub-section (3) of
section 39 of the Act of 2009.
23. 'Delegatus non potest delegare' is a basic tenet of
administrative law and administration of justice.
24. An officer who is authorised to conduct an enquiry in terms
of sub-section (1) of section 39 of the Act of 2009 cannot further
delegate his power to his subordinate officer.
25. The aforesaid view of the Court is duly fortified by judgment
of this Court in the case of Ashok Kumar Machhi (supra) wherein it
has been held as infra :
"Other aspect of the matter is, that even if it is
assumed, that the State Government directed the
Collector to hold enquiry, even in that event, from the
established legal proposition of delegata potestas non
potest delegari, the Collector himself being a
delegatee could not have further delegated power of
conducting the inquiry. To this contention, it was
submitted by Mr. Bhati, that Annex.R/15 is not a
forwarding letter, and it should be taken to be inquiry
report by the Collector himself, inasmuch as he
recapitulated the report of the SDO, and has come to
his own conclusion. In our view, there is no basis to
say, that he has given his own conclusion, rather he
simply forwarded the report of SDO, by reproducing
certain paragraphs enumerated in the inquiry report
from of the SDO. This is apart from the fact, that even
the State Government proceeded on the basis of
report of the SDO, and not on the basis of
Annex.R1/5. Therefore also, it can not be said, that
there was any valid inquiry conducted by the
competent authority, as required by proviso to
Sec.63(1) of the Act. This is second aspect of the
matter."
(7 of 8) [CW-17283/2021]
26. The enquiry got conducted by the State and the enquiry
report dated 29.07.2021 is, therefore, clearly void and without
jurisdiction.
27. Moving on to the argument of learned Additional Advocate
General that the enquiry aforesaid was only a fact finding enquiry,
this Court is of the considered view that it is the ingenuity of the
learned Additional Advocate General who has portrayed the
enquiry to be a fact finding enquiry. Otherwise, in para (e) at page
37 and various other parts of the reply the stand of the
respondent - State has been that the report dated 29.07.2021 is
'preliminary enquiry'. Not only this, even the impugned order
dated 08.12.2021 uses the expression 'preliminary enquiry' at its
opening part.
28. Had the intention of the State been to assimilate facts only,
then neither the show cause notice dated 08.12.2021, would have
referred to the preliminary enquiry report nor was there any
necessity of sending the communication dated 08.03.2021 to the
District Collector, Jodhpur.
29. If the State Government wanted the facts to be ascertained,
a simple letter to the Municipal Corporation would be enough,
because record of birth even as birth registering authority was
with it.
30. As noticed above, fact finding enquiry or preliminary enquiry,
by whatever name called, the enquiry in question which was
ordered to be done by the District Collector has been conducted
by Deputy Commissioner if not by the Sanitary Inspector. Hence,
the same is void having been conducted by the incompetent
authority.
(8 of 8) [CW-17283/2021]
31. The impugned order dated 08.12.2021, which embraces
within its fold the order of suspension as well, founded on the so
called enquiry report dated 29.07.2021, is also void and a nullity.
32. For the reasons stated above, the writ petition is allowed.
33. The impugned order dated 08.12.2021 soliciting petitioner's
explanation so also placing the petitioner under suspension is,
hereby, quashed.
34. Needless to observe that mere quashment of the order dated
08.12.2021 shall not preclude the State Government from
conducting a de-novo enquiry in accordance with law keeping the
mandate and spirit of section 39 (1) of the Act of 2009.
35. It goes without saying that consequent to quashment of
order dated 08.12.2021, the petitioner's position as Member of the
Ward No.24 shall stand restored.
36. Stay application too stands disposed of accordingly.
(DINESH MEHTA),J
98-A.Arora/-
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