Rajasthan High Court - Jodhpur

Om Prakash Kalwa vs State Of Rajasthan on 26 September, 2023

Bench: Pushpendra Singh Bhati

[2023:RJ-JD:30125]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 12569/2023

Om Prakash Kalwa S/o Shri Jodha Ram Kalwa, Aged About 61 Years, Resident Of Meghdeep, Near Udham Singh Chowk, Old Housing Board, Suratgarh, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through Its Director, Local Self Government, Jaipur (Rajasthan).

2. The District Collector, Shriganganagar, Rajasthan.

3. Rajasthan Urban Drinking Water Sewerage And Infrastructure Corporation Limited, Through Its Executive Director, Having Address At Old Working Womens Hostel Building, Near Police Hq, Lal Kothi, Tonk Road, Jaipur (Rajasthan).

----Respondents

For Petitioner(s) : Mr. Muktesh Maheshwari with Mr. Gopal Bose.

For Respondent(s) : Mr. Sunil Beniwal, AAG with Mr. Utkarsh Singh.

For Applicant(s) : Mr. Rajesh Panwar, Sr. Adv. assisted by Mr. Aakash Kukkar.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 14/09/2023 Pronounced on 26/09/2023

1. This writ petition under Article 226 of the Constitution India

has been preferred claiming the following reliefs:

"It is, therefore, most respectfully and humbly prayed that;

i) the instant writ petition may kindly be allowed and a writ, order or direction in the appropriate nature may kindly be issued in favour of the humble petitioner and the and the

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suspension order dated 24.07.2023 (Annexure 25), order dated 28.07.2023 (Annexure 26) and the notice of Judicial inquiry dated 02.08.2023 (Annexure 28), be declared illegal and be quashed and set aside; and

ii) the respondents may kindly be ordered and directed to let the petitioner discharge the duties of the Chairman of the Municipality and to not to harass and humiliate the petitioner in light of the complaints made by the private persons

(iii) any other order of direction, which this Hon'ble Court deems fit and proper in the facts and circumstances of the present case may kindly be passed in favour of the humble petitioner."

2. As per the pleaded facts, the Rajasthan Urban Drinking

Water Sewerage & Infrastructure Corporation Limited (hereinafter

referred to as 'RUDSICO') invited bids in the year 2015 for certain

works, as mentioned therein, at Bhadra and Suratgarh towns

(hereinafter referred to as 'The Project').

2.1. In the year 2016, the work order for the Project was issued

to M/s Montecarlo Ltd, in Joint Venture with M/s Jyoti Buildtech

Pvt. Ltd. (hereinafter referred to as 'Company').

2.2. Thereafter, in the year 2019, certain irregularities arose with

regard to the work being done by the Company and complaints

were made, whereupon the Executive Director of RUDSICO was

directed to inquire into the complaints and a committee was

constituted to submit its report by 16.09.2019; thereafter

pursuant to the orders of the District Collector, Sriganganagar, one

more committee was constituted to inquire into the complaints,

and site visits were accordingly made in October, 2019. The

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concerned Engineer of RUDSICO withheld the amount of the

Company through its concerned running bills.

2.3. Subsequently, the petitioner was elected as the Chairman of

the Municipality, Suratgarh on 26.11.2019. A letter dated

07.01.2022 was forwarded by the concerned Project Engineer

(Superintending Engineer), RUDSICO, Jaipur, to the Executive

Officer, Nagar Palika, Suratgarh with regard to the completion of

the Project and to release the balance amount to the Company.

Thereafter, a note sheet was drawn in the office of Municipality, to

the effect that all the complaints had been withdrawn;

subsequently on 15.03.2022, the Executive Officer, Municipality,

Suratgarh passed an order granting approval in regard to payment

of withheld amount of Rs.1,45,57,144/-, which was payable to the

Company.

2.4. Subsequent to the release of such payment complaints were

made with regard to the same and thus the petitioner issued

directions to stop any further payments to the Company.

Thereafter, the District Collector initiated further inquiry and a

committee was constituted whereafter a report was presented on

01.11.2022; however one Banwari Lal filed a complaint on

09.01.2023 alleging the above said report to be biased. Being

aggrieved, the petitioner preferred a writ petition before this

Hon'ble Court bearing SBCWP No. 5413/2023, wherein an interim

order was passed, to the effect that the respondents were free to

proceed with the proceedings and conclude the same.

2.5. Subsequently, another inquiry was conducted, and upon

conclusion, the report dated 08.03.2023 was forwarded to the

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District Collector, who in turn, on the basis of the same,

recommended vide letter dated 10.03.2023 initiation of

proceedings against the petitioner.

2.6. Thereafter, during pendency of the aforementioned writ

petition, a notice under Section 39 of the Rajasthan Municipalities

Act, 2009 (hereinafter referred to as 'Act of 2009') was issued to

the petitioner on 24.04.2023 and a decision was arrived at, to

suspend the petitioner from the post of Chairman, while initiating

a judicial enquiry against him.

2.7. Subsequently, on 21.07.2023, this Hon'ble Court had

dismissed the above writ petition with liberty to the petitioner to

approach this Hon'ble Court again, if occasion so arises.

2.8. Thereafter, the respondents issued an order on 24.07.2023

whereby the petitioner was suspended and a judicial enquiry was

ordered to be initiated against the petitioner; on 28.07.2023,

another person was nominated as Chairman for a period of 60

days; in addition, a notice dated 02.08.2023 was received by the

petitioner directing him to appear for judicial enquiry and was

served with a chargesheet and charge details. Aggrieved of the

above-said suspension order, nomination order and the notice for

appearance, the petitioner has preferred the present writ petition

claiming the afore-quoted reliefs.

3. Learned counsel for the petitioner submitted that the

complaints of irregularities with regard to the Project had begun

even before the petitioner had been elected as a Chairman, and

thus, the petitioner could not be held responsible for something

that started prior to him being elected on the said post, and

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during the multiple enquiries done before the report dated

08.03.2023. It was further submitted that the concerned authority

has consistently observed that physical verification of the site was

not possible.

3.1. It was also submitted that the impugned suspension order

was passed solely on the basis of the report dated 08.03.2023 and

the said report nowhere leveled any specific allegation against the

petitioner or highlighted specific role of the petitioner, instead it

was based on mere statements of 6 persons and even the veracity

of same was not duly ascertained.

3.2. It was further submitted that the committee did not examine

the officers of RUDSICO as the amount had been released at the

instance of the officer of RUDSICO and the same was sanctioned

by the Executive Officer of the Municipality whereas the petitioner

was not even involved in the transaction.

3.3. It was also submitted that subsequent to release of the said

amount, the petitioner himself had issued directions to stop

further payments to the Company, yet in an arbitrary manner, the

petitioner had been made a target by the respondents.

4. On the other hand, Mr. Rajesh Panwar, learned Senior

Counsel assisted by Mr. Aakash Kukkar appearing for applicant-

Banwari Lal in the application seeking impleadment; and Mr. Sunil

Beniwal, learned Additional Advocate General assisted by Mr.

Utkarsh Singh, appearing on behalf of the respondents opposed

the aforesaid submissions made on behalf of the petitioner.

[2023:RJ-JD:30125] (6 of 9) [CW-12569/2023]

4.1. It was submitted that the petitioner was the Chairman of the

Municipality, Suratgarh when the amount in question was

sanctioned to the Company on 15.03.2022.

4.2. It was further submitted that the report dated 08.03.2023

was signed by four committee members including an IAS officer,

RAS officer, District Treasurer and the Superintendent of Police,

and the entire committee visited the spot in Suratgarh and the

statement of certain local residents were accordingly recorded,

whereby it transpired that signatures of 203 persons had been

taken with regard to the work done by breaking the Septic Tank;

however the same were fake and no Septic tanks were either

emptied or broken.

4.3. In furtherance, it was submitted that written report of the

spot was also taken from the technical officers whereby random

inspection of nodes/manholes as per the actual drawings of the

sewerage line laid by the company was done and it was found that

the geographical surface had changed due to construction, thus no

cogent decision could be taken; however according to the one

common statement of the residents, it was clear that they had

septic tanks in their houses and water from those would flow in

the drains built along the roads, thus, it was clear that without

breaking septic tanks, the Company had submitted its claim and

collected the amount.

4.4. It was also submitted that the amount in question had been

released, based on the fact that the complaints had been

withdrawn; however as per the statements of the complainants,

no such complaints had been withdrawn by them.

[2023:RJ-JD:30125] (7 of 9) [CW-12569/2023]

4.5. Learned Additional Advocate General submitted that the

proceedings in question have been initiated not only against the

present petitioner, but also against the concerned Executive

Officer, involved in the illegality or irregularity in question.

4.6. In support of such submissions, reliance was placed on the

judgment rendered by a Coordinate Bench of this Hon'ble Court in

the case of Nirmal Kumar Pitaliya v. State of Rajasthan &

Ors. (SBCWP no. 17285/2021, decided on 01.02.2022).

5. Heard learned counsel for the parties as well as perused

record of the case, alongwith the judgment cited at the Bar.

6. This Court observes that a tender with regard to the above

mentioned work was issued in the year 2015 and work order for

the same was issued in the year 2016 to the Company; whereafter

in the year 2019, the complaints were made with regard to

irregularities in performance such work, and thus, inquiry was

made into the same. The petitioner was elected as the Chairman

of the Municipality, Suratgarh on 26.11.2019 and the office of

Municipality released the said amount in favour of the Company;

complaints were made against the said action and a report was

filed in regard thereto, which came to be alleged as biased by one

Banwari Lal; whereafter another inquiry was done and a report

dated 08.03.2023 was forwarded to the District Collector, and

subsequently, the respondents issued an order to suspend and

initiate judicial inquiry against the petitioner.

7. This Court further observes that the petitioner was the

elected Chairman of the Municipality Suratgarh and in pursuance

of the claim made by the Company for completion of the work, in

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collusion with the RUDSICO Officers, on 15.03.2022 the amount in

question was sanctioned; even though clearly the amount had

been withheld pursuant to the complaints made against the

irregularities done by the Company in the Project.

8. This Court also observes that the members of the Committee

went to inspect the site and statements of the certain persons

living at the place were taken; apart from the statements, a

written report from the technical officers present on site was also

taken and thereafter the report concluded that necessary

departmental action should be taken against the persons involved

in sanctioning of the amount and to recover a sum of

Rs.1,60,98,940/- from the construction company and to take

necessary actions against the Company as well, and in

furtherance, the said report was signed by all committee members

i.e. an IAS officer, RAS officer, District Treasurer and the

Superintendent of Police.

9. This Court further observes that the suspension order dated

24.07.2023 was based on the aforesaid detailed report wherein

the Septic tanks/wells, as stated, had not been broken; in fact

prior to this, there never existed any sock pit on the roads,

instead the septic tanks had been in people's houses and the

sewage water was released on the roads, and yet the Company

had presented its claim for the work done and on count of the

complaints being withdrawn, the withheld amount was released by

the petitioner, when in actuality, no such complaint had been

withdrawn. Relevant portion of the suspension order is reproduced

as hereunder:

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"ftyk dyDVj Jhxaxkuxj }kjk xfBr tkap desVh }kjk izdj.k esa dh xbZ tkap fjiksVZ ds vuqlkj lsfIVd Vsad@dqbZ;ka rksMs fcuk gh dEiuh }kjk Dyse izLrqr dj uksMy ,tsalh :Mfldks ds ek/;e ls uxj ikfydk] lwjrx< ls Hkqxrku mBk;k x;k gSA uxj ikfydk] lwjrx< }kjk f'kdk;rdrkZvksa }kjk f'kdk;r okfil ysus o 203 miHkksDrkvksa dh iqf"V fd, tkus dks vk/kkj cukdj en la[;k 42 dh fongsYM jkf'k dk Hkqxrku fjyht dj fn;k x;k] tcfd LFkkuh; f'kdk;rdrkZvksa }kjk ;g c;ku fn;k x;k gS fd muds }kjk dksbZ f'kdk;r okfil ugha yh xbZ gSA c;kudrkZvksa }kjk fn, x, gYQukes ds vuqlkj 'kiFkdrkZvksa ls flojst ykbZu fcNkus ds uke ls gLrk{kj djok, x, FksA LFkkuh; okf'kanksa o LoPNrk fujh{kd o teknkjksa ls losZ esa vafdr c;kuksa ds vuqlkj lM+dksa ij iwoZ esa dksbZ lksd fiV fufeZr ugha crk, x, gSaA lHkh okf'kanksa ds c;kuksa vuqlkj lsfIVd VSad ?kjksa esa Fks o lsfIVd VSad dk ikuh iwoZ esa cuh lM+dksa ds fdukjs cuh ukfy;ksa esa izokfgr gksrk FkkA vr% Hkqxrku mfpr <ax ls lR;kiu ds vk/kkj ij u gksus ls vuqfpr ik;k x;k gS ftlds fy, vki izFke n`"V;k nks"kh ik;s x;s gSaA bl izdkj bl dk;Z eas lksd fiV rksMus@[kkyh djus ls lacaf/kr fcyksa ds Dyse djus okys fuekZ.k daiuh ds rduhdh vf/kdkjh fcyksas esa gq, dk;Z dks lR;kfir djus esa uxj ikfydk] lwjrx< ds vf/kdkjhx.k lfgr Jh vkseizdk'k dkyok] v/;{k] uxj ikfydk] lwjrx<] ftyk Jhxaxkuxj Hkh izFke n`"V;k nks"kh ik;s x;s gSaA "

10. This Court also observes that an order for appearing for

judicial enquiry initiated under Section 39 of the Act of 2009 was

correctly issued to the petitioner and the same was done after

filing of the charge-sheet against the petitioner, based, amongst

others, on a detailed factual report.

11. Thus, in light of the aforesaid observations and looking into

the factual matrix of the present case, this Court does not find it a

fit case so as to grant any relief to the petitioner in the present

petition.