Rajasthan High Court
Sanjay Kumar Son Of Shri Dinanand vs State Of Rajasthan on 23 November, 2022
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 11507/2022
Sanjay Kumar Son Of Shri Dinanand, Aged About 57 Years,
Resident Of Senior Higher Secondary School, Near Purana
Bhawan, District Jhalawar, Rajasthan, Chairman And Parshad,
Ward No. 40, Nagar Parishad, Jhalawar, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary, Department Of
Local Self, Government Of Rajasthan, Jaipur.
2. The Director And Joint Secretary, Local Bodies,
Directorate, Jaipur, Rajasthan.
3. The District Collector And District Magistrate, Kota,
Rajasthan.
4. The Sub Divisional Officer, District Jhalawar, Rajasthan.
5. The Municipal Council, Jhalawar Through Its
Commissioner.
----Respondents
For Petitioner(s) : Mr. A.K. Bhandari Sr. Adv.
Mr. Ram Kishan Sharma
Mr. Bhrigu Sharma
For Respondent(s) : Mr. Anil Mehta, AAG with
Mr. Yashodhar Pandey
HON'BLE MR. JUSTICE INDERJEET SINGH
Order
23/11/2022
Heard counsel for the parties on the stay application.
Counsel for the petitioner submits that prior to passing of the
order dated 27.07.2022, no opportunity of hearing was given to
the petitioner and even preliminary enquiry has not been
conducted by the Competent Authority. Counsel further submits
that as per Section 39(6) of the Rajasthan Municipalities Act, 2009
(2 of 4) [CW-11507/2022]
(hereinafter referred to as "the Act of 2009"), the opportunity of
hearing must be provided to the petitioner before passing of the
suspension order.
In support of his contention, counsel further relied upon the
judgment passed by the Co-ordinate Bench of this Court in the
matter of Rajaram Gurjar Vs. State of Rajasthan (S.B. Civil Writ
Petition No.21332/2019) decided on 14.02.2020.
Mr. Anil Mehta, learned Additional Advocate General has
opposed the stay application and submitted that the similar
controversy has already been considered and decided by the
Division Bench of this Court in the matter of Smt. Somya Gurjar
Vs. State of Rajasthan & Ors (D.B. Civil Writ Petition
No.6485/2021) decided on 28.06.2021, where in para No.32, 33 &
34, it has been held as under:-
32. We would like to clarify that proviso to sub-
section (1) of Section 39 of the Act of 2009
does not apply to a removal on the grounds
mentioned under sub-clauses (c) or (d) of sub-
section (1) of Section 39 of the Act of 2009. As
it is evident from the plain reading of sub-
section (3) of Section 39, which provides that a
member may be removed on the grounds under
clauses (c) or (d) and it is only after conducting
an enquiry by an Enquiry Officer of the rank of
District Judge whereas, under proviso to sub-
section (1), after conducting enquiry and
affording an opportunity of explanation to the
member concerned, the State Government can
pass an order of removal. Sub-section (6) of
Section 39 does not provide for any explanation
before passing an order of suspension. In
Rajaram Gurjar Versus State of Rajasthan &
Ors.: 2020 SCC OnLine Raj 268, Single Judge
of this Court has held that Section 39(6) of the
Act of 2009 does not contemplate that any
show cause notice is required to be given or an
explanation is required to be called from the
member of municipality.
33. On plain reading of Section 39(6) of the Act
of 2009, it is evident that it does not provide
for considering any explanation before passing
an order of suspension. It merely empowers the
State Government to place a Member under
suspension against whom proceedings have
(3 of 4) [CW-11507/2022]
been commenced under this Section until
conclusion of the enquiry and passing of the
final order.
34. Since the Division Bench and the Full Bench
have held that the order of suspension is an
interim measure and it has never been the
intention of the Legislature to provide two
opportunities for providing explanation i.e. one
before passing the order of suspension and the
other before framing of the charges, we feel
inclined to accept the submissions of learned
Advocate General that it has not been the
intention of the Legislature to grant
predecisional hearing to the Corporators before
he/she is suspended and that it is not the
requirement of the Act of 2009 to afford
hearing or explanation before passing the order
of suspension. We accordingly hold that a
person is not required to be heard before
passing of suspension order.
Learned Additional Advocate General further submits that
prior to passing of the order of suspension, the preliminary
enquiry was conducted in this matter and the District Collector
has submitted its report to the State Government.
Heard counsel for the parties and perused the record.
In view of the judgment passed by the Division Bench of
this Court in the matter of Smt. Somya Gurjar (supra), prima
facie, no case is made out in favour of the petitioner for staying
the order of suspension dated 27.07.2022, as the Hon'ble
Division Bench has held that prior to passing of the order of
suspension under Section 39 (6) of the Act, 2009 it does not
provide for considering any explanation before passing an order
of suspension.
In that view of the matter, considering the submissions put-
forth by counsel for the parties and also the judgment passed by
the Division Bench of this Court in the matter of Smt. Somya
(4 of 4) [CW-11507/2022]
Gurjar (supra), no case is made out for staying the order of
suspension dated 27.07.2022.
Hence, the stay application stands dismissed.
List this writ petition in the fist week of January, 2023 for
final disposal.
(INDERJEET SINGH),J
Upendra Pratap Singh /20
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